EXHIBIT 10.22
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SECOND AMENDED AND RESTATED
CREDIT AGREEMENT
dated as of
February 28, 2000
among
CT OPERATING PARTNERSHIP, L.P.
as Borrower
The Lenders Party Hereto
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
___________________________
CHASE SECURITIES INC.,
as Lead Arranger and Book Manager
CREDIT LYONNAIS, NEW YORK BRANCH,
as Syndication Agent
and
CIBC INC.
as Documentation Agent
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TABLE OF CONTENTS
Page
ARTICLE I Definitions.............................................................................. 1
SECTION 1.01. Defined Terms................................................................. 1
SECTION 1.02. Classification of Loans and Borrowings........................................ 29
SECTION 1.03. Terms Generally............................................................... 29
SECTION 1.04. Accounting Terms; GAAP........................................................ 29
SECTION 2.01. Commitments................................................................... 30
SECTION 2.02. Loans and Borrowings.......................................................... 30
SECTION 2.03. Requests for Borrowings....................................................... 31
SECTION 2.04. Intentionally Deleted......................................................... 31
SECTION 2.05. Intentionally Deleted......................................................... 31
SECTION 2.06. Letters of Credit............................................................. 31
(a) General....................................................................... 32
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions......... 32
(c) Expiration Date............................................................... 32
(d) Participations................................................................ 32
(e) Reimbursement................................................................. 33
(f) Obligations Absolute.......................................................... 33
(g) Disbursement Procedures....................................................... 34
(h) Interim Interest.............................................................. 34
(i) Replacement of the Issuing Bank............................................... 35
(j) Cash Collateralization........................................................ 35
SECTION 2.07. Funding of Borrowings......................................................... 36
SECTION 2.08. Interest Elections............................................................ 36
SECTION 2.09. Termination and Reduction of Commitments...................................... 37
SECTION 2.10. Repayment of Loans; Evidence of Debt.......................................... 38
SECTION 2.11. Prepayment of Loans; Release of Mortgaged Property/Subsidiary Guaranty........ 39
SECTION 2.12. Fees.......................................................................... 41
SECTION 2.13. Interest...................................................................... 42
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TABLE OF CONTENTS
(continued)
Page
SECTION 2.14. Alternate Rate of Interest.................................................. 43
SECTION 2.15. Increased Costs............................................................. 43
SECTION 2.16. Break Funding Payments...................................................... 44
SECTION 2.17. Taxes....................................................................... 45
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-offs................. 46
SECTION 2.19. Mitigation Obligations; Replacement of Lenders.............................. 48
ARTICLE III Representations and Warranties......................................................... 49
SECTION 3.01. Organization; Powers........................................................ 49
SECTION 3.02. Authorization; Enforceability............................................... 49
SECTION 3.03. Governmental Approvals; No Conflicts........................................ 49
SECTION 3.04. Financial Condition; No Material Adverse Change............................. 50
SECTION 3.05. Properties.................................................................. 50
SECTION 3.06. Litigation and Environmental Matters........................................ 52
SECTION 3.07. Compliance with Laws and Agreements......................................... 54
SECTION 3.08. Investment and Holding Company Status....................................... 54
SECTION 3.09. Taxes....................................................................... 54
SECTION 3.10. ERISA....................................................................... 55
SECTION 3.11. Disclosure.................................................................. 55
SECTION 3.12. Insurance................................................................... 55
SECTION 3.13. REIT Status................................................................. 55
SECTION 3.14. Ownership of Projects, Minority Holdings and Property....................... 56
ARTICLE IV Conditions............................................................................. 56
SECTION 4.01. Effective Date.............................................................. 56
SECTION 4.02. Each Credit Event........................................................... 58
ARTICLE V Affirmative Covenants.................................................................. 59
SECTION 5.01. Financial Statements and Other Information.................................. 59
(a) Quarterly Reports........................................................... 59
(i) Borrower Quarterly Financial Reports....................... 59
(ii) Company Quarterly Financial Reports........................ 59
(iii) Quarterly Compliance Certificates.......................... 60
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TABLE OF CONTENTS
(Continued)
Page
(iv) Quarterly Financial Statements With Respect to the Mortgaged
Properties................................................... 60
(b) Annual Reports................................................................ 60
(i) Borrower Financial Statements................................ 60
(ii) Company Financial Statements................................. 60
(iii) Annual Compliance Certificates............................... 61
(iv) Tenant Bankruptcy Reports.................................... 61
(v) Annual Financial Statements With Respect to the Mortgaged
Properties................................................... 61
SECTION 5.02. Notices of Material Events.................................................... 62
SECTION 5.03. Existence; Conduct of Business................................................ 65
SECTION 5.04. Payment of Obligations........................................................ 65
SECTION 5.05. Maintenance of Properties; Insurance.......................................... 65
SECTION 5.06. Books and Records; Inspection Rights.......................................... 65
SECTION 5.07. Compliance with Laws.......................................................... 66
SECTION 5.08. Use of Proceeds and Letters of Credit......................................... 66
SECTION 5.09. Company Status................................................................ 66
SECTION 5.10. Ownership of Projects, Minority Holdings and Property......................... 66
SECTION 5.11. Intentionally Deleted......................................................... 66
SECTION 5.12. Environmental Matters......................................................... 66
SECTION 5.13. Borrowing Base Determination/ Requirements.................................... 67
SECTION 5.14. Equity Infusion Requirement................................................... 69
ARTICLE VI Negative Covenants....................................................................... 69
SECTION 6.01. Indebtedness and Other Financial Covenants.................................... 69
(a) From and After the Effective Date............................................. 69
(i) Limitations on Indebtedness.......................................... 69
(ii) Minimum Facility Interest Coverage Ratio............................. 69
(iii) Minimum Fixed Charge Coverage Ratio.................................. 70
(iv) Restrictions on Stock Buyback........................................ 70
(b) Negative Pledge............................................................... 70
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TABLE OF CONTENTS
(continued)
Page
(c) Pro Forma Calculations........................................................ 70
SECTION 6.02. Liens......................................................................... 70
SECTION 6.03. Fundamental Changes........................................................... 71
SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions..................... 71
SECTION 6.05. Hedging Agreements............................................................ 72
SECTION 6.06. Transactions with Affiliates.................................................. 72
SECTION 6.07. Intentionally Deleted......................................................... 72
SECTION 6.08. Margin Regulations; Securities Laws........................................... 72
SECTION 6.09. Negative Covenants of the Company............................................. 72
SECTION 6.10. Environmental Matters......................................................... 73
ARTICLE VII Events of Default........................................................................ 73
ARTICLE VIII The Administrative Agent................................................................. 76
ARTICLE IX Miscellaneous............................................................................ 79
SECTION 9.01. Notices....................................................................... 79
SECTION 9.02. Waivers; Amendments........................................................... 79
SECTION 9.03. Expenses; Indemnity; Damage Waiver............................................ 80
SECTION 9.04. Successors and Assigns........................................................ 82
SECTION 9.05. Survival...................................................................... 84
SECTION 9.06. Counterparts; Integration; Effectiveness...................................... 84
SECTION 9.07. Severability.................................................................. 85
SECTION 9.08. Right of Set-off.............................................................. 85
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process.................... 85
SECTION 9.10. WAIVER OF JURY TRIAL.......................................................... 86
SECTION 9.11. Headings...................................................................... 86
SECTION 9.12. Confidentiality............................................................... 86
SECTION 9.13. Interest Rate Limitation...................................................... 87
iv
SECOND AMENDED AND RESTATED CREDIT AGREEMENT dated as of February 28,
2000 among CT OPERATING PARTNERSHIP, L.P. (formerly known as ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Properties Operating Partnership, L.P.), as Borrower, the LENDERS party hereto,
and THE CHASE MANHATTAN BANK, as Administrative Agent.
WHEREAS, pursuant to that certain Credit Agreement dated as of
December 31, 1997, among Borrower, the financial institutions listed on the
signature page thereof (the "Original Lenders") and the Administrative Agent
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(the "Original Credit Agreement"), the Original Lenders agreed to make to
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Borrower Loans (hereinafter defined) of up to $250,000,000 in aggregate
principal amount outstanding at any one time, for the purposes and upon the
terms and subject to the conditions set forth therein;
WHEREAS, as of May 18, 1998, pursuant to that certain Amended and
Restated Credit Agreement among Borrower, the Lenders (as defined therein) and
the Administrative Agent, the Original Credit Agreement was amended and restated
(the Original Credit Agreement, as so amended and restated, the "Amended Credit
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Agreement");
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WHEREAS, as of the date hereof (i) $169,624,116.51 have been advanced
to Borrower, and are outstanding as Eurodollar Loans (as hereinafter defined)
and (ii) Letters of Credit (hereinafter defined) in the aggregate undrawn amount
of $4,802,475.00 have been issued and are outstanding, in each case pursuant to
the terms of the Amended Credit Agreement;
WHEREAS, the parties hereto have agreed to amend certain terms and
provisions of the Amended Credit Agreement and to restate the same as
hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the covenants and
agreements contained herein, the parties hereto hereby agree that the
aforementioned recitals are true and correct and hereby incorporated herein and
that the Amended Credit Agreement is hereby amended and restated in its entirety
so that all of the terms and conditions contained in this Agreement shall
supersede and control the terms and conditions of the Amended Credit Agreement.
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms. As used in this Agreement, the
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following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
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whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base Rate.
"Adjusted EBITDA" means, for any Person, for any period, (i) EBITDA
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for such person, for such period, as adjusted to eliminate the straight-lining
of rents, less (ii) the Capital Expenditure Deduction Amount for such Person's
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Projects for such period.
"Adjusted LIBO Rate" means, with respect to any Eurodollar Borrowing
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for any Interest Period, an interest rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest
Period multiplied by (b) the Statutory Reserve Rate.
"Adjusted NOI" means, for any period, (a) with respect to any Project
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owned by the Consolidated Businesses, the NOI relating to such Project for such
period less (i) the Capital Expenditure Deduction Amount relating to such
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Project, and (ii) a management fee of three percent (3%) of gross revenues from
such Project; and (b) with respect to any Project owned by a Minority Holding,
the portion allocable to Borrower, in accordance with GAAP, of the NOI relating
to such Project for such period less (i) the Capital Expenditure Deduction
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Amount relating to such Project, and (ii) a management fee of three percent (3%)
of gross revenues from such Project, in each case for such period.
"Administrative Agent" means The Chase Manhattan Bank, in its capacity
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as administrative agent for the Lenders hereunder, and any successor thereto
under this Agreement.
"Administrative Questionnaire" means an Administrative Questionnaire
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in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another Person
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that directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"Aggregate Value" means, with respect to the Mortgaged Properties, at
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any date, the aggregate value thereof to be calculated as follows:
(i) with respect to Mortgaged Properties owned for not less
than four (4) fiscal quarters, as of the first day of each fiscal
quarter for the immediately preceding consecutive four (4) fiscal
quarters, an amount equal to Adjusted NOI relating to such Mortgaged
Properties for such period divided by 9.5%; and
(ii) with respect to Mortgaged Properties owned for less than
four (4) fiscal quarters, an amount equal to the Appraised Value for
such Mortgaged Properties.
"Agreement" means the Amended Credit Agreement, together with all
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Exhibits and Schedules thereto, as amended and restated by this Second Amended
and Restated Credit Agreement, together with all Exhibits and Schedules hereto
and as the same may be further amended, supplemented or otherwise modified from
time to time.
2
"Alternate Base Rate" means, for any day, a rate per annum equal to
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the greatest of (a) the Prime Rate in effect on such day, (b) the Base CD Rate
in effect on such day plus 1% and (c) the Federal Funds Effective Rate in effect
on such day plus 1/2 of 1%. Any change in the Alternate Base Rate due to a
change in the Prime Rate, the Base CD Rate or the Federal Funds Effective Rate
shall be effective from and including the effective date of such change in the
Prime Rate, the Base CD Rate or the Federal Funds Effective Rate, respectively.
"Applicable Percentage" means, with respect to any Lender, the
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percentage of the total Commitments represented by such Lender's Commitment. If
the Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon the Commitments most recently in effect, giving effect to
any assignments.
"Applicable Rate" means, effective as of January 1, 2000 (i) with
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respect to any ABR Loan, 1%, and (ii) with respect to any Eurodollar Loan, 2.5%.
"Appraisal" means an MAI appraisal in compliance with FIRREA using
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methodologies reasonably acceptable to the Administrative Agent at the time such
appraisal is or was made and performed by a qualified and recognized
professional appraiser as may be selected or approved by the Administrative
Agent, having at least ten (10) years' prior experience in performing real
estate appraisals in the geographic area where the property being appraised is
located, having a recognized expertise in appraising properties operated as
retail shopping centers.
"Appraised Value" means, with respect to any Eligible Project, the
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fair market value therefor as determined by and set forth in the Appraisal
relating thereto.
"Approving Lenders" means, at any time, Lenders having Commitments
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representing at least 80% of the sum of total Commitments at such time.
"Assessment Rate" means, for any day, the annual assessment rate in
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effect on such day that is payable by a member of the Bank Insurance Fund
classified as "well-capitalized" and within supervisory subgroup "B" (or a
comparable successor risk classification) within the meaning of 12 C.F.R. Part
327 (or any successor provision) to the Federal Deposit Insurance Corporation
for insurance by such Corporation of time deposits made in dollars at the
offices of such member in the United States; provided that if, as a result of
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any change in any law, rule or regulation, it is no longer possible to determine
the Assessment Rate as aforesaid, then the Assessment Rate shall be such annual
rate as shall be determined by the Administrative Agent to be representative of
the cost of such insurance to the Lenders.
"Assignment and Acceptance" means an assignment and acceptance entered
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into by a Lender and an assignee (with the consent of any party whose consent is
required by Section 9.04), and accepted by the Administrative Agent, in the form
of Exhibit B or any other form approved by the Administrative Agent.
3
"Assignment of Leases" means the Assignment of Leases and Rents
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Agreement between the Administrative Agent and Borrower.
"Availability Period" means the period from and including the Closing
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Date to but excluding the earlier of the Maturity Date and the date of
termination of the Commitments.
"Available Credit" means, at any time, an amount equal to (i) the
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lower of (A) the then effective Commitments of the Lenders, and (B) the
applicable Borrowing Base at such time, minus (ii) the total Credit Exposure of
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all the Lenders at such time.
"Base CD Rate" means the sum of (a) the Three-Month Secondary CD Rate
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multiplied by the Statutory Reserve Rate plus (b) the Assessment Rate.
"Board" means the Board of Governors of the Federal Reserve System of
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the United States of America.
"Borrower" means CT Operating Partnership, L.P., a California limited
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partnership.
"Borrower's Investment" means, with respect to any Project, Borrower's
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or any of its Subsidiaries' investment in such Project (including all
investments constituting, evidencing or secured by an interest in property,
whether tangible or intangible and whether real, personal or mixed, that is used
or intended for use in, or in any manner connected with or relating to, the
ownership or leasing of such Project, specifically including, without
limitation, investments in Subsidiaries and Minority Holdings owning or leasing
Projects), at cost, on a consolidated basis, provided that in determining the
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cost of such investments, there shall be included (i) the amount of all cash
paid and the value (as reasonably determined by the Company for purposes of such
investment) of any other property transferred therefor by Borrower or its
Subsidiary, (ii) the amount of all Indebtedness and other obligations assumed or
incurred by Borrower or its Subsidiary or to which Borrower or its Subsidiary
takes subject, and (iii) the value (as determined by the Company for the
purposes of such investment) of all equity securities of which the issuer is an
entity that is, or upon such investment will be, included within Borrower or its
Subsidiary and which are issued (otherwise than for cash) to, or retained by,
any person other than Borrower or its Subsidiary in connection with such
investment.
"Borrowing" means Loans of the same Type, made, converted or continued
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on the same date and, in the case of Eurodollar Loans, as to which a single
Interest Period is in effect.
"Borrowing Base" means, subject to Section 5.13, 65% of the Aggregate
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Value of the Mortgaged Properties at such time.
"Borrowing Base Certificate" means a certificate of Borrower
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substantially in the form of Exhibit C.
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4
"Borrowing Base Imbalance" has the meaning assigned to such term in
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Section 2.11(d) hereof.
"Borrowing Request" means a request by Borrower for a Borrowing in
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accordance with Section 2.03.
"Business Day" means any day that is not a Saturday, Sunday or other
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day on which commercial banks in New York City, New York, are authorized or
required by law to remain closed; provided that, when used in connection with a
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Eurodollar Loan, the term "Business Day" shall also exclude any day on which
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banks are not open for dealings in dollar deposits in the London interbank
market.
"Capital Expenditure Deduction Amounts" means, for any Project, the
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greater of (i) the sum of (a) an amount per annum equal to $0.30 multiplied by
the number of square feet for such Project and (ii) as of the first day of each
calendar quarter, an amount equal to the actual Capital Expenditures for such
Project for the immediately preceding consecutive four calendar quarters.
"Capital Expenditures" means, for any period, the aggregate of all
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expenditures (whether payable in cash or other Property or accrued as a
liability (but without duplication) during such period that, in conformity with
GAAP, are required to be included in or reflected by the Company's, Borrower's
or any of its Subsidiaries' fixed asset accounts as reflected in any of their
respective balance sheets; provided, however, Capital Expenditures shall include
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the sum of all expenditures by the Consolidated Businesses and the portion of
expenditures of Minority Holdings allocable to the Consolidated Businesses for
tenant improvements, leasing commissions, property level capital expenditures
(e.g., roof replacement, parking lot repairs, etc.) but not capital expenditures
in connection with expansions and initial developments and initial lease-up of
Projects.
"Capital Lease Obligations" of any Person means the obligations of
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such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Cash and Cash Equivalents" means unrestricted (i) cash, (ii)
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marketable direct obligations issued or unconditionally guaranteed by the United
States government and backed by the full faith and credit of the United States
government; and (iii) domestic and Eurodollar certificates of deposit and time
deposits, bankers' acceptances and floating rate certificates of deposit issued
by any commercial bank organized under the laws of the United States, any state
thereof, the District of Columbia, any foreign bank, or its branches or agencies
(fully protected against currency fluctuations), which, at the time of
acquisition, are rated A-1 (or better) by S&P or P-1 (or better) by ▇▇▇▇▇'▇
provided that such Cash and Cash Equivalents shall mature within one year of the
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acquisition thereof.
5
"Change in Control" means (a) the acquisition of ownership, directly
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or indirectly, beneficially or of record, by any Person or group (within the
meaning of the Securities Exchange Act of 1934 and the rules of the Securities
and Exchange Commission thereunder as in effect on the date hereof) other than
Prometheus, of shares representing more than 25% of the aggregate ordinary
voting power represented by the issued and outstanding capital stock of the
Company; (b) occupation of a majority of the seats (other than vacant seats) on
the board of directors of the Company by Persons who were neither (i) nominated
by the board of directors of the Company nor (ii) appointed by directors so
nominated; or (c) the acquisition of direct or indirect Control of Borrower or
the Company by any Person or group other than Prometheus.
"Change in Law" means (a) the adoption of any law, rule or regulation
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after the date of this Agreement, (b) any change in any law, rule or regulation
or in the interpretation or application thereof by any Governmental Authority
after the date of this Agreement or (c) compliance by any Lender or the Issuing
Bank (or, for purposes of Section 2.15(b), by any lending office of such Lender
or by such Lender's or the Issuing Bank's holding company, if any) with any
request, guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this Agreement.
"Closing Date" means December 31, 1997.
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"Code" means the Internal Revenue Code of 1986, as amended from time
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to time.
"Collateral" means all property and interests in property and proceeds
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thereof now owned or hereafter acquired by Borrower or any of its Subsidiaries
in or upon which a Lien is granted under any of the Collateral Documents.
"Collateral Documents" means, collectively, the Mortgages, the
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Assignments of Leases, the Environmental Indemnities, the Subordination and
Attornment Agreements and any other document now or hereafter executed and
delivered by Borrower or any of its Subsidiaries granting a Lien on any of its
property to secure payment of the Obligations.
"Commitment" means, with respect to each Lender, the commitment of
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such Lender to make Loans and to acquire participations in Letters of Credit
hereunder, expressed as an amount representing the maximum aggregate amount of
such Lender's Credit Exposure hereunder, as such commitment (a) may be reduced
from time to time pursuant to Section 2.09, (b) may be reduced or increased from
time to time pursuant to assignments by or to such Lender pursuant to Section
9.04 and (c) shall be reduced proportionately from time to time as the
Commitment Amount is reduced pursuant to the conditions set forth in the
definition of Commitment Amount. The initial amount of each Lender's Commitment
is set forth on Schedule 2.01, or in the Assignment and Acceptance pursuant to
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which such Lender shall have assumed its Commitment, as applicable.
6
"Commitment Amount" is the maximum aggregate amount of the
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Lenders' Commitment and shall be $175,000,000.00, subject to the
following conditions:
(i) Upon closing of a refinance, or a sale, of all three
(3) of the ▇▇▇▇▇▇▇▇▇, Rheem Valley and Montebello Town Square
Projects, the Commitment Amount will reduce by $40,000,000.00;
provided that, if the ▇▇▇▇▇▇▇▇▇, Rheem Valley and Montebello Town
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Square Projects are refinanced or sold separately, the Commitment
Amount will reduce by (a) $10,000,000.00 upon the refinancing or sale
of the ▇▇▇▇▇▇▇▇▇ Project, (b) $10,000,000.00 upon the refinancing or
sale of the Rheem Valley Project and (c) $20,000,000.00 upon the
refinancing or sale of the Montebello Town Square Project;
(ii) Upon the sale of the Media City Center Enclosed Mall
(the "MCC"), the Commitment Amount will reduce by the greater of (A)
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100% of the net proceeds thereof (after payment of customary and
reasonable closing expenses) or (B) $50,000,000.00;
(iii) Upon the sale or refinancing of the MCC Macy's, the
Commitment Amount will reduce by the greater of (A) 100% of the net
proceeds thereof (after payment of customary and reasonable closing
expenses)or (B) $10,000,000.00;
(iv) Upon the sale of the City Center Power Center, the
Commitment Amount will reduce by the greater of (A) 100% of the net
proceeds thereof (after payment of customary and reasonable closing
expenses)or (B) $43,000,000.00;
(v) Upon the sale of the MCC Tax Notes, the Commitment
Amount will reduce by the greater of (A) 100% of the net proceeds
thereof (after payment of customary and reasonable closing expenses)or
(B) $10,000,000.00.
To the extent that the Commitment Amount has not previously
been reduced below the following amounts, the Commitment Amount will
reduce to $135,000,000.00 as of March 31, 2000, and to $85,000,000.00
as of June 30, 2000. In no event will the reductions to the Commitment
Amount set forth in (i) through (v) above, reduce the Commitment
Amount below $50,000,000.00. Borrower shall, with each reduction to
the Commitment Amount as provided for herein, prepay the principal
amount of the Loans in accordance with the prepayment provisions
hereof, in an amount equal to the amount of the required reduction to
the Commitment Amount.
"Company" means Center Trust, Inc., a Maryland corporation, formerly
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known as Center Trust Retail Properties, Inc., formerly known as ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ Properties, Inc.
7
"Compliance Certificate" means a certificate of Borrower substantially
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in the form of Exhibit D.
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"Consolidated Businesses" means the Company, Borrower and their
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wholly- owned Subsidiaries.
"Contingent Obligation" as to any Person means, without duplication,
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(i) any contingent obligation of such Person required to be shown on such
Person's balance sheet in accordance with GAAP, and (ii) any obligation required
to be disclosed in the footnotes to such Person's financial statements in
accordance with GAAP, guaranteeing partially or in whole any non-recourse
Indebtedness, lease, dividend or other obligation, exclusive of contractual
indemnities (including, without limitation, any indemnity or price-adjustment
provision relating to the purchase or sale of securities or other assets) and
guarantees of non-monetary obligations (other than guarantees of completion)
which have not yet been called on or quantified, of such Person or of any other
Person. The amount of any Contingent Obligation described in clause (ii) shall
be deemed to be (a) with respect to a guaranty of interest or interest and
principal, or operating income guaranty, the sum of all payments required to be
made thereunder (which in the case of an operating income guaranty shall be
deemed to be equal to the debt service for the note secured thereby), calculated
at the interest rate applicable to such Indebtedness, through (i) in the case of
an interest or interest and principal guaranty, the stated date of maturity of
the obligation (and commencing on the date interest could first be payable
thereunder), or (ii) in the case of an operating income guaranty, the date
through which such guaranty will remain in effect, and (b) with respect to all
guarantees not covered by the preceding clause (a) an amount equal to the stated
or determinable amount of the primary obligation in respect of which such
guaranty is made or, if not stated or determinable, the maximum reasonably
anticipated liability in respect thereof (assuming such Person is required to
perform thereunder) as recorded on the balance sheet and on the footnotes to the
most recent financial statements of the applicable Borrower required to be
delivered pursuant hereto. Notwithstanding anything contained herein to the
contrary, guarantees of completion shall not be deemed to be Contingent
Obligations unless and until a claim for payment has been made thereunder, at
which time any such guaranty of completion shall be deemed to be a Contingent
Obligation in an amount equal to any such claim. Subject to the preceding
sentence, (i) in the case of a joint and several guaranty given by such Person
and another Person (but only to the extent such guaranty is recourse, directly
or indirectly to the applicable Borrower), the amount of the guaranty shall be
deemed to be 100% thereof unless and only to the extent that (X) such other
Person has delivered Cash and Cash Equivalents to secure all or any part of such
Person's guaranteed obligations or (Y) such other Person holds an Investment
Grade Credit Rating from either ▇▇▇▇▇'▇ or S&P, and (ii) in the case of a
guaranty, (whether or not joint and several) of an obligation otherwise
constituting Indebtedness of such Person, the amount of such guaranty shall be
deemed to be only that amount in excess of the amount of the obligation
constituting Indebtedness of such Person. Notwithstanding anything contained
herein to the contrary, "Contingent Obligations" shall not be deemed to include
(i) guarantees of loan commitments or of construction loans to the extent the
same have not been drawn, or (ii) any obligations of Borrower or the Company
under the Haagen Agreement.
8
"Control" means the possession, directly or indirectly, of the power
-------
to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
----------- ----------
"Credit Exposure" means, with respect to any Lender at any time, the
---------------
sum of the outstanding principal amount of such Lender's Loans and its LC
Exposure at such time.
"Default" means any event or condition which constitutes an Event of
-------
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Disclosed Matters" means the actions, suits and proceedings and the
-----------------
environmental matters disclosed in Schedule 3.06.
"dollars" or "$" refers to lawful money of the United States of
------- -
America.
"EBITDA" means, for any Person for any period, the Net Income (Loss)
------
of such Person for such period taken as a single accounting period, plus (a) the
----
sum of the following amounts of such Person and its subsidiaries for such period
determined on a consolidated basis in conformity with GAAP to the extent
included in the determination of such Net Income (Loss): (i) depreciation
expense, (ii) amortization expense and other non-cash charges, (iii) interest
expense, (iv) income tax expense, (v) extraordinary losses (and other losses on
asset sales not otherwise included in extraordinary losses determined on a
consolidated basis in conformity with GAAP), and (vi) minority interests in
Unconsolidated Entities, less (b) the sum of the following amounts of such
----
Person and its subsidiaries determined on a consolidated basis in conformity
with GAAP to the extent included in the determination of such Net Income (Loss):
(i) extraordinary gains (and in the case of Borrower, other gains on asset sales
not otherwise included in extraordinary gains determined on a consolidated basis
in conformity with GAAP), (ii) the applicable share of Net Income (Loss) of such
Person's Unconsolidated Entities; plus (c) the portion allocable to such Person
----
of EBITDA of such Person's Unconsolidated Entities.
"Effective Date" means the date hereof, provided that with respect to
--------------
the Applicable Rate, the Effective Date shall mean January 1, 2000.
"Eligible Minority Holdings" means Minority Holdings in which (i) the
--------------------------
Company, Borrower and/or any of its direct or indirect wholly-owned Subsidiaries
collectively have an ownership and/or income interest of greater than fifty
percent (50%), (ii) the Company, Borrower and/or any of its direct or indirect
wholly-owned Subsidiaries control the management of such Minority Holdings,
whether as the general partner or managing member of such Minority Holding, or
otherwise, (iii) the Company, Borrower and/or any of its direct or indirect
wholly-owned Subsidiaries, as general partner, managing member or otherwise, has
the ability, in its sole discretion, to grant Liens on the assets of such
Minority Holding, and (iv) there are no restrictions on the ability of such
Minority Holding to declare distributions or dividends, as the case may be.
9
As used in this definition only, the term "control" shall mean the authority to
make major management decisions in its sole discretion and the management.
"Eligible Project Documents" means, with respect to any Eligible
--------------------------
Project, the following documents:
(a) A description of such Project, such description to include
the age and location of such Project together with a current rent roll
therefor;
(b) A copy of the most recent ALTA Owner's Policy of Title
Insurance (or commitment to issue such a policy to Borrower or its
Subsidiary or Eligible Minority Holding owning or to own such Project)
relating to such Project showing the identity of the fee titleholder
thereto and all matters of record as of its date;
(c) A PML study for such Project prepared by a consultant
acceptable to the Administrative Agent;
(d) Copies of all engineering, mechanical, structural and
maintenance studies performed by third party consultants with respect
to such Project;
(e) A "Phase I" environmental assessment of such Project prepared
by an environmental engineering firm acceptable to the Administrative
Agent, and any additional environmental studies or assessments
available to Borrower performed with respect to such Project;
(f) A Borrowing Base Certificate setting forth on a pro forma
basis the Borrowing Base and the Available Credit assuming that such
Project is accepted as an Eligible Project for the purposes of the
Borrowing Base; and
(g) Such other information as the Administrative Agent may
reasonably request in order to evaluate the Project;
provided that with respect to any Project, the Approving Lenders may waive
-------- ----
delivery of any of the Eligible Project Documents.
"Eligible Projects" means, collectively, such of the Projects owned by
-----------------
Borrower or any of its direct or indirect wholly-owned Subsidiaries, as shall
either (i) be approved by the Approving Lenders or (ii) meet at any time and
from time to time, each of the following minimum criteria:
(a) such Project is Unencumbered;
(b) such Project is free of all material structural and title
defects other than Permitted Encumbrances;
10
(c) such Project is, as of the date upon which such Project is
included in the Aggregate Value and as of the end of each succeeding
fiscal quarter, (i) in compliance, in all material respects, with all
applicable Environmental Laws, and (ii) not subject to any material
Environmental Liabilities and Costs, in each case as initially
verified by a written report of an environmental consultant reasonably
acceptable to the Administrative Agent;
(d) such Project is an unenclosed, anchored neighborhood shopping
center or power center, provided that (i) the provisions of this
-------- ----
clause (d) shall not be required for the Smitty's Tucson Project, and
(ii) the Media City Center Project may be enclosed;
(e) such Project is owned in fee simple by Borrower or its direct
or indirect wholly-owned Subsidiary provided that the Media City
-------- ----
Center Project may be included as an Eligible Project notwithstanding
that Borrower owns only a ground leasehold interest therein;
(f) such Project has, as of the date upon which such Project is
included in the Aggregate Value and as of the end of each succeeding
fiscal quarter, a PML of 20% or less of the replacement cost therefor,
in each case as initially verified by a PML study prepared by a
consultant reasonably acceptable to the Administrative Agent; and
(g) such Project is located in one of the following states:
Washington, California, Oregon, Arizona, Nevada, Utah or Idaho.
"Environmental Claim" means any notice of violation, action, claim,
-------------------
Environmental Lien, demand, abatement or other Order or direction (conditional
or otherwise) by any Governmental Authority or any other Person for personal
injury (including sickness, disease or death), tangible or intangible property
damage, damage to the environment, nuisance, pollution, contamination or other
adverse effects on the environment, or for fines, penalties or restriction,
resulting from or based upon (i) the existence, or the continuation of the
existence, of a Release (including, without limitation, sudden or non-sudden
accidental or non-accidental Releases) of, or exposure to, any Hazardous
Material or odor, audible noise or other nuisance, or other Release in, into or
onto the environment (including, without limitation, the air, soil, surface
water or groundwater) at, in, by, from or related to any property owned,
operated or leased by Borrower or any of its Subsidiaries or any activities or
operations thereof; (ii) the environmental aspects of the transportation,
storage, treatment or disposal of Hazardous Materials in connection with any
property owned, operated or leased by Borrower or any of its Subsidiaries or
their operations or facilities; or (iii) the violation, or alleged violation, of
any Environmental Laws, Orders or Environmental Permits of or from any
Governmental Authority relating to environmental matters connected with any
property owned, leased or operated by Borrower or any of its Subsidiaries.
11
"Environmental Indemnity" means the Joint and Several Hazardous
-----------------------
Material Guaranty and Indemnification Agreement between the Administrative
Agent, Borrower, and the Guarantor (as defined therein).
"Environmental Laws" means any applicable federal, state, local or
------------------
foreign law (including common law), statute, code, ordinance, rule, regulation
or other requirement having the force or effect of law relating to the
environment, natural resources, or public or employee health and safety and
includes, without limitation, the Comprehensive Environmental Response,
Compensation, and Liability Act ("CERCLA"), 42 U.S.C. (S) 9601 et seq., the
-- ---
Hazardous Materials Transportation Act, 49 U.S.C. (S) 1801 et seq., the Federal
-- ---
Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. (S) 136 et seq., the
-- ---
Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. (S) 6901 et seq., the
-- ---
Toxic Substances Control Act, 15 U.S.C. (S) 2601 et seq., the Clean Air Act, 42
-- ---
U.S.C. (S) 7401 et seq., the Clean Water Act, 33 U.S.C. (S) 1251 et seq., the
-- --- -- ---
Occupational Safety and Health Act, 29 U.S.C. (S) 651 et seq. (to the extent the
-- ---
same relates to any Hazardous Materials), and the Oil Pollution Act of 1990, 33
U.S.C. (S) 2701 et seq., as such laws have been amended or supplemented, and the
-- ---
regulations promulgated pursuant thereto, and all analogous state and local
statutes.
"Environmental Liabilities and Costs" means, as to any Person, all
-----------------------------------
liabilities, obligations, responsibilities, Remedial Actions, losses, damages,
punitive damages, consequential damages, treble damages, costs and expenses
(including, without limitation, all reasonable fees, disbursements and expenses
of counsel, experts and consultants and costs of investigation and feasibility
studies), fines, penalties, sanctions and interest incurred as a result of any
claim or demand by any other Person, whether based in contract, tort, implied or
express warranty, strict liability, criminal or civil statute, including,
without limitation, any thereof arising under any Environmental Law,
Environmental Permit, order or agreement with any Governmental Authority or
other Person, and which relate to any environmental, health or safety condition,
or a Release or threatened Release, and result from the past, present or future
operations of, or ownership of property by, such Person or any of its
Subsidiaries or Eligible Minority Holdings.
"Environmental Lien" means any Lien in favor of any Governmental
------------------
Authority arising under any Environmental Law.
"Environmental Permit" means any Permit required under any applicable
--------------------
Environmental Laws or Order and all supporting documents associated therewith.
"Equity Infusion" has the meaning assigned to such term in the
---------------
Security Agreement.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
-----
amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
---------------
incorporated) that, together with Borrower, is treated as a single employer
under
12
Section 414(b) or (c) of the Code or, solely for purposes of Section 302 of
ERISA and Section 412 of the Code, is treated as a single employer under Section
414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in Section
-----------
4043 of ERISA or the regulations issued thereunder with respect to a Plan (other
than an event for which the 30-day notice period is waived); (b) the existence
with respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by Borrower or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan;
(e) the receipt by Borrower or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention to terminate any Plan or
Plans or to appoint a trustee to administer any Plan; (f) the incurrence by
Borrower or any of its ERISA Affiliates of any liability with respect to the
withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the
receipt by Borrower or any ERISA Affiliate of any notice, or the receipt by any
Multiemployer Plan from Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
"Eurodollar", when used in reference to any Loan or Borrowing, refers
----------
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate.
"Event of Default" has the meaning assigned to such term in Article
----------------
VII.
"Excluded Taxes" means, with respect to the Administrative Agent, any
--------------
Lender, the Issuing Bank or any other recipient of any payment to be made by or
on account of any obligation of Borrower hereunder, (a) income or franchise
taxes imposed on (or measured by) its net income by the United States of
America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits taxes imposed by the United States of America or any similar tax imposed
by any other jurisdiction in which Borrower is located and (c) in the case of a
Foreign Lender (other than an assignee pursuant to a request by Borrower under
Section 2.19(b)), any withholding tax that is imposed on amounts payable to such
Foreign Lender at the time such Foreign Lender becomes a party to this Agreement
(or designates a new lending office) or is attributable to such Foreign Lender's
failure to comply with Section 2.17(e), except to the extent that such Foreign
Lender (or its assignor, if any) was entitled, at the time of designation of a
new lending office (or assignment), to receive additional amounts from Borrower
with respect to such withholding tax pursuant to Section 2.17(a).
"Facility Interest Expense" means, for any period, the interest
-------------------------
expense of Borrower (whether paid, accrued or capitalized) with respect to the
Loans or LC
13
Disbursements, calculated at the greater of (i) the actual interest rate
provided for herein, and (ii) an annual interest rate of 7.5%.
"FAD" means "funds available for distribution" and shall mean, for any
---
period, FFO, as adjusted to eliminate the straight-lining of rents, less Capital
Expenditures, for such period, whether payable or accrued as a liability.
"Federal Funds Effective Rate" means, for any day, the weighted
----------------------------
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"FFO" means "funds from operations" as defined in the National
---
Association of Real Estate Investment Trusts ("NAREIT") White Paper on Funds
------
From Operations as approved by the NAREIT Board of Governors on March 3, 1995.
"Financial Officer" means the chief financial officer, principal
-----------------
accounting officer, treasurer or controller of Borrower.
"Fixed Charges" means, with respect to any fiscal period, the sum of
-------------
(a) Total Interest Expense and (b) the aggregate of all scheduled principal
payments on Total Outstanding Indebtedness according to GAAP made or required to
be made during such fiscal period for the Consolidated Businesses and Minority
Holdings (but excluding balloon payments of principal due upon the stated
maturity of an Indebtedness), and (c) the aggregate of all dividends payable on
the Company's or any of its consolidated Subsidiaries' preferred stock.
"Foreign Lender" means any Lender that is organized under the laws of
--------------
a jurisdiction other than that in which Borrower is located. For purposes of
this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"GAAP" means generally accepted accounting principles in the United
----
States of America.
"General Partner" means the Company and any successor general
---------------
partner(s) of Borrower.
"Governmental Authority" means the government of the United States of
----------------------
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
14
"Guarantee" of or by any Person (the "guarantor") means any
--------- ---------
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
---------------
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party
in respect of any letter of credit or letter of guaranty issued to support such
Indebtedness or obligation; provided, that the term Guarantee shall not include
--------
endorsements for collection or deposit in the ordinary course of business.
"Guaranty" means the Guaranty of even date herewith made by the
--------
Company for the benefit of the Lenders.
"Haagen Agreement" means that certain Separation Agreement and Release
----------------
dated as of November 24, 1997 by and between ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇., ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ III, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ III & ▇▇▇▇▇ ▇▇▇▇▇▇
TRUST fbo ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ UA 10/24/88, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ III & ▇▇▇▇▇ ▇▇▇▇▇▇
TRUST fbo AUTUMN HAAGEN UA 10/24/88, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ III & ▇▇▇▇▇ ▇▇▇▇▇▇ TRUST
fbo ▇▇▇▇▇▇ ▇▇▇▇▇▇ UA 10/28/88, HAAGEN LIVING TRUST DATED AUGUST 17, 1988, AS
AMENDED AND RESTATED AS OF APRIL 18, 1996, HAAGEN LIMITED PARTNERSHIP, and
LAZARD FRERES REAL ESTATE INVESTORS, LLC, LFSRI, PROMETHEUS, and the COMPANY,
BORROWER and HAAGEN PROPERTY MANAGEMENT, INC.
"Hazardous Material" means any substance, material or waste which is
------------------
regulated by any Governmental Authority of the United States as a "hazardous
waste," "hazardous material," "hazardous substance," "extremely hazardous
waste," "restricted hazardous waste," "contaminant," "toxic waste," "toxic
substance" or words of similar meaning or import under any provision of
Environmental Law, which includes, but is not limited to, petroleum, petroleum
products, asbestos, urea formaldehyde and polychlorinated biphenyls.
"Hedging Agreement" means any interest rate protection agreement,
-----------------
foreign currency exchange agreement, commodity price protection agreement or
other interest or currency exchange rate or commodity price hedging arrangement.
"Improvements" means all buildings, fixtures, structures, parking
------------
areas, landscaping and all other improvements whether existing now or hereafter
constructed, together with all machinery and mechanical, electrical, HVAC and
plumbing systems presently located thereon and used in the operation thereof,
excluding (a) any such items owned by utility service providers, (b) any such
items
15
owned by tenants or other third-parties unaffiliated with Borrower and (c)
any items of personal property.
"Indebtedness" of any Person means, without duplication, (a) all
------------
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
upon which interest charges are customarily paid, (d) all obligations of such
Person under conditional sale or other title retention agreements relating to
property acquired by such Person, (e) all obligations of such Person in respect
of the deferred purchase price of property or services (excluding current
accounts payable incurred in the ordinary course of business), (f) all
Indebtedness of others secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien on
property owned or acquired by such Person, whether or not the Indebtedness
secured thereby has been assumed, (g) all Guarantees by such Person of
Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i)
all obligations, contingent or otherwise, of such Person as an account party in
respect of letters of credit and letters of guaranty and (j) all obligations,
contingent or otherwise, of such Person in respect of bankers' acceptances. The
Indebtedness of any Person shall include the Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to the
extent such Person is liable therefor as a result of such Person's ownership
interest in or other relationship with such entity, except to the extent the
terms of such Indebtedness provide that such Person is not liable therefor.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
-----------------
"Initial Mortgaged Properties" means those Eligible Projects set forth
----------------------------
on Schedule 5.13.
-------------
"Interest Election Request" means a request by Borrower to convert or
-------------------------
continue a Borrowing in accordance with Section 2.08.
"Interest Payment Date" means (a) with respect to any ABR Loan, the
---------------------
last day of each month, and (b) with respect to any Eurodollar Loan, the last
day of the Interest Period applicable to the Borrowing of which such Loan is a
part and, in the case of a Eurodollar Borrowing with an Interest Period of more
than one month's duration, each day prior to the last day of such Interest
Period that occurs at intervals of one month duration after the first day of
such Interest Period.
"Interest Period" means with respect to any Eurodollar Borrowing, the
---------------
period commencing on the date of such Borrowing and ending on the numerically
corresponding day in the calendar month that is one, two, three or six months
thereafter, as Borrower may elect; provided, that (i) if any Interest Period
--------
would end on a day other than a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless such next succeeding
Business Day would fall in the next calendar month, in which case such Interest
Period shall end on the next preceding Business Day, (ii) any Interest Period
that commences on the last Business Day of a calendar month (or
16
on a day for which there is no numerically corresponding day in the last
calendar month of such Interest Period) shall end on the last Business Day of
the last calendar month of such Interest Period and (iii) Borrower may not elect
two, three or six month Interest Periods until 120 days after the Closing Date
or such earlier date as the Administrative Agent shall notify Borrower of the
completion of its syndication efforts. For purposes hereof, the date of a
Borrowing initially shall be the date on which such Borrowing is made and
thereafter shall be the effective date of the most recent conversion or
continuation of such Borrowing.
"Issuing Bank" means The Chase Manhattan Bank, in its capacity as the
------------
issuer of Letters of Credit hereunder, and its successors in such capacity as
provided in Section 2.06(i). The Issuing Bank may, in its discretion, arrange
for one or more Letters of Credit to be issued by Affiliates of the Issuing
Bank, in which case the term "Issuing Bank" shall include any such Affiliate
with respect to Letters of Credit issued by such Affiliate.
"Lazard Agreements" means, collectively, the Stockholders Agreement,
-----------------
the Stock Purchase Agreement and the Registration Rights Agreement.
"LC Disbursement" means a payment made by the Issuing Bank pursuant to
---------------
a Letter of Credit.
"LC Exposure" means, at any time, the sum of (a) the aggregate undrawn
-----------
amount of all outstanding Letters of Credit at such time plus (b) the aggregate
amount of all LC Disbursements that have not yet been reimbursed by or on behalf
of Borrower at such time. The LC Exposure of any Lender at any time shall be
its Applicable Percentage of the total LC Exposure at such time.
"Lease" means a lease, license, concession agreement or other
-----
agreement providing for the use or occupancy of any portion of any Project,
including all amendments, supplements, modifications and assignments thereof and
all side letters or side agreements relating thereto.
"Legal Proceedings" means any judicial, administrative or arbitral
-----------------
actions, suits, proceedings (public or private) or governmental proceedings.
"Lenders" means the Persons listed on Schedule 2.01 and any other
------- -------------
Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Acceptance.
"Letter Agreement" means a letter agreement in the form attached as
----------------
Exhibit H hereto duly executed by Prometheus and LFSRI and duly acknowledged by
------- -
Borrower and the Company.
"Letter of Credit" means any letter of credit issued pursuant to this
----------------
Agreement.
17
"LFSRI" means LF Strategic Realty Investors, L.P., a Delaware limited
-----
partnership.
"LIBO Rate" means, with respect to any Eurodollar Borrowing for any
---------
Interest Period, the rate appearing on Page 3750 of the Telerate Service (or on
any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent, from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the "LIBO Rate" with respect to such
---------
Eurodollar Borrowing for such Interest Period shall be the rate (rounded
upwards, if necessary, to the next 1/16 of 1%) at which dollar deposits of
$4,000,000 and for a maturity comparable to such Interest Period are offered by
the principal London office of the Administrative Agent in immediately available
funds in the London interbank market at approximately 11:00 a.m., London time,
two Business Days prior to the commencement of such Interest Period.
"Lien" means, with respect to any asset, (a) any mortgage, deed of
----
trust, lien, pledge, hypothecation, encumbrance, charge or security interest in,
on or of such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"Loan Documents" means, collectively, this Agreement, the Notes, the
--------------
Guaranty, the Security Agreement, the Subsidiary Guaranties, the Collateral
Documents and each certificate, agreement, document or other instrument executed
by Borrower or any of its Subsidiaries or the Company and delivered to the
Administrative Agent in connection with the transactions contemplated hereby, as
such agreements, documents or instruments may be amended, modified or
supplemented from time to time.
"Loan Year" means the period commencing on the Closing Date and ending
---------
on the anniversary thereof and each twelve (12) month period thereafter.
"Loans" means the loans made by the Lenders to Borrower pursuant to
-----
this Agreement and "Loan" means a Loan made pursuant to Section 2.03.
---- ------------
"Margin Stock" means "margin stock" as such term is defined in
------------
Regulation U and Regulation G of the Federal Reserve Board as in effect from
time to time.
"Material Adverse Effect" means a material adverse effect on (a) the
-----------------------
business, assets, operations, or condition, financial or otherwise, of the
Company,
18
Borrower and the Subsidiaries taken as a whole, (b) the ability of Borrower or
the Company to perform any of their respective obligations under the Loan
Documents or (c) the rights of or benefits available to the Lenders under the
Loan Documents.
"Material Indebtedness" means Indebtedness (other than the Loans and
---------------------
Letters of Credit), or obligations in respect of one or more Hedging Agreements,
of any one or more of Borrower and its Subsidiaries in an aggregate principal
amount exceeding $25,000,000. For purposes of determining Material
Indebtedness, the "principal amount" of the obligations of Borrower or any
Subsidiary in respect of any Hedging Agreement at any time shall be the maximum
aggregate amount (giving effect to any netting agreements) that Borrower or such
Subsidiary would be required to pay if such Hedging Agreement were terminated at
such time.
"Maturity Date" means December 31, 2000.
-------------
"MCC Tax Notes" means (i) that certain note dated December 6, 1990,
-------------
made by the Redevelopment Agency of the City of Burbank (the "City") in the
----
original amount of $33,000,000.00 and held by Borrower, and (ii) that certain
note dated December 15, 1989, made by the City in the original amount of
$18,500,00.00 and held by Borrower.
"Minority Holdings" means partnerships, joint ventures and
-----------------
corporations held or owned by Borrower and/or the Company which are not wholly-
owned by Borrower and/or the Company.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
-------
"Mortgage Documents" means with respect to any Eligible Project, the
------------------
following documents, where applicable, in the forms accepted by the
Administrative Agent for the Initial Mortgaged Properties on the Closing Date
subject to appropriate revisions for state or property specific requirements:
(a) A duly executed and acknowledged Mortgage, Assignment of Leases
and Environmental Indemnity for such Eligible Project.
(b) a commitment for a title insurance policy (the "Title Insurance
---------------
Policy") issued by a title company reasonably acceptable to the Administrative
------
Agent, in such form and amounts as are reasonably acceptable to the
Administrative Agent, insuring that the Mortgage is a valid first priority Lien
on such Mortgaged Project subject only to such exceptions to title as shall be
acceptable to the Administrative Agent in its reasonable discretion and
containing such endorsements and affirmative insurance as the Administrative
Agent may reasonably require and as are obtainable in the applicable
jurisdiction, and true copies of each document, instrument or certificate
required by the terms of each such policy or Mortgage to be, or have been,
filed, recorded, executed or delivered in connection therewith;
(c) an opinion reasonably satisfactory to the Administrative Agent of
counsel and/or local counsel retained by Borrower with respect to the due
execution and
19
delivery, validity and enforceability of the Mortgage Documents and such other
matters as may be reasonably required by the Administrative Agent;
(d) duly executed UCC-1 Financing Statements under the applicable
Uniform Commercial Code to be filed in connection with such Mortgage in form and
substance reasonably satisfactory to the Administrative Agent, to perfect the
Lien created by the applicable Mortgage;
(e) (i) duly executed and acknowledged estoppel certificates in form
and substance reasonably satisfactory to the Administrative Agent, each such
estoppel certificate to be received by the Administrative Agent not later than
45 days after the date through which rent has been paid as indicated in such
estoppel certificate, from such number of tenants of such Mortgaged Property as,
when aggregated with tenants of the other Mortgaged Properties included for
purposes of the Borrowing Base that have delivered acceptable estoppel
certificates, account for not less than 70% of the aggregate base rental
revenues from all of the Mortgaged Properties and (ii) duly executed and
acknowledged Subordination and Attornment Agreements (in recordable form and
otherwise in the form attached as Exhibit F hereto) from such number of tenants
---------
of such Mortgaged Property as, when aggregated with (y) tenants of the other
Mortgaged Properties included for purposes of the Borrowing Base that have
delivered acceptable Subordination and Attornment Agreements, and (z) other
tenants of such Mortgaged Property and such other Mortgaged Properties who
occupy the Mortgaged Properties under Leases that are, by their terms, subject
and subordinate to the Liens of the respective Mortgages, account for not less
than 70% of the aggregate base rental revenues from all of the Mortgaged
Properties. For purposes of subparagraphs (i) and (ii) of this paragraph (e),
with respect to each Mortgaged Property, the number of tenants of such Mortgaged
Property that have delivered acceptable estoppel certificates or Subordination
and Attornment Agreements shall be calculated as of the date of the Mortgage
unless the Administrative Agent shall, in it sole and absolute discretion,
permit calculation as of a later date;
(f) an ALTA survey and surveyor's certification for such Mortgaged
Property, in form and substance reasonably satisfactory to the Administrative
Agent and dated not more than six (6) months prior to the date such Project
becomes a Mortgaged Property;
(g) payment to the Administrative Agent, or as the Administrative
Agent may direct, of all title insurance premiums, documentary, stamp or
intangible taxes, recording fees and mortgage taxes payable in connection with
the recording of any of the Mortgage Documents or the issuance of the Title
Insurance Policy;
(h) an Appraisal for such Mortgaged Property; and
(i) such additional documents, information and materials relating to
such Mortgaged Property as the Administrative Agent may reasonably request.
20
"Mortgage Property Release" has the meaning assigned to such term in
-------------------------
Section 2.11(e).
"Mortgaged Property" means any Eligible Project subject to a Mortgage
------------------
in favor of the Administrative Agent.
"Mortgages" means the mortgages or deeds of trust securing, inter
--------- -----
alia, the Obligations, made or required herein to be made by Borrower or any of
----
its Subsidiaries as such Mortgages may be amended, supplemented or otherwise
modified from time to time.
"Multiemployer Plan" means a multiemployer plan as defined in Section
------------------
4001(a)(3) of ERISA.
"Net Income (Loss)" means, for any Person for any period, the
-----------------
aggregate of net income (or loss) of such Person and its subsidiaries for such
period, determined on a consolidated basis in conformity with GAAP.
"Net Offering Proceeds" means all cash or other assets received by the
---------------------
Company as a result of the sale of Stock or Stock Equivalents in the Company,
less reasonable costs and expenses paid or incurred by the Company in connection
with such sale.
"NOI" means net operating income determined in accordance with GAAP,
---
as adjusted to eliminate the straight-lining of rents.
"Non-Recourse Indebtedness" of any Person means all Indebtedness of
-------------------------
such Person with respect to which recourse for payment is limited to specific
assets encumbered by a Lien securing such Indebtedness; provided, however, that
-------- -------
personal recourse of a holder of Indebtedness against any obligor with respect
thereto for fraud, misrepresentation, misapplication of cash, waste and other
circumstances customarily excluded from non-recourse provisions in non-recourse
financing of real estate shall not, by itself, prevent any Indebtedness from
being characterized as Non-Recourse Indebtedness, provided further that if a
-------- ------- ----
personal recourse claim is made in connection therewith, such claim shall not
constitute Non-Recourse Indebtedness for the purposes of this Agreement.
"Note" means a promissory note in the form attached hereto as Exhibit
---- -------
A payable to a Lender, evidencing certain of the Obligations of Borrower to such
-
Lender and executed by Borrower as set forth in Section 2.10 hereof, as the same
may be amended, supplemented, modified, replaced or restated from time to time;
"Notes" means, collectively, all of such Notes outstanding at any given time.
-----
"Notice of Breach" has the meaning assigned to such term in the Letter
----------------
Agreement.
"Obligations" means the Loans, the LC Exposure and all other advances,
-----------
debts, liabilities, obligations, covenants and duties owing by Borrower to the
Lenders, or
21
any Affiliates of the Lenders (of every type and description, present or future,
whether or not evidenced by any note, guaranty or other instrument) arising
under this Agreement or under any other Loan Document, whether or not for the
payment of money, loan, guaranty, indemnification, foreign exchange transaction
or Hedging Agreement or in any other manner, whether direct or indirect
(including, without limitation, those acquired by assignment), absolute or
contingent, due or to become due, now existing or hereafter arising under this
Agreement or under any other Loan Document. The term "Obligations" includes,
without limitation, all interest, charges, expenses, fees, attorneys' fees and
disbursements and any other sum chargeable to Borrower under this Agreement or
any other Loan Document.
"Other Taxes" means any and all present or future stamp or documentary
-----------
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made hereunder or from the execution, delivery or enforcement
of, or otherwise with respect to, this Agreement.
"Order" means any order, injunction, judgment, decree, ruling,
-----
assessment or arbitration award.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
----
defined in ERISA and any successor entity performing similar functions.
"Permit" means any permit, approval, authorization, license, variance,
------
registration, permission or consent required from a Governmental Authority under
an applicable Requirement of Law.
"Permitted Encumbrances" means:
----------------------
(a) Liens imposed by law for taxes, assessments or governmental
charges or claims that are not yet due or are being contested in
compliance with Section 5.04;
(b) landlords', carriers', warehousemen's, mechanics',
materialmen's, repairmen's and other like Liens imposed by law,
arising in the ordinary course of business and securing obligations
that are not overdue by more than 30 days or are being contested in
compliance with Section 5.04;
(c) pledges and deposits made in the ordinary course of business
in compliance with workers' compensation, unemployment insurance and
other social security laws or regulations;
(d) deposits to secure the performance of bids, trade contracts,
government contracts, utility payments, leases, statutory obligations,
surety and appeal bonds, performance bonds and other obligations of a
like nature, in each case in the ordinary course of business;
22
(e) easements, zoning restrictions, rights-of-way, minor defects,
encroachments or irregularities in title and similar encumbrances on
Real Property imposed by law or arising in the ordinary course of
business that do not secure any monetary obligations and do not
materially detract from the value of the affected property or
interfere with the ordinary conduct of business of Borrower or any
Subsidiary; and
(f) any Lien securing the Obligations.
provided that the term "Permitted Encumbrances" shall not include any Lien
-------- ----
securing Indebtedness other than Liens securing the Obligations.
"Permitted Investments" means:
---------------------
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States
of America (or by any agency thereof to the extent such obligations
are backed by the full faith and credit of the United States of
America), in each case maturing within one year from the date of
acquisition thereof;
(b) investments in commercial paper maturing within 270 days from
the date of acquisition thereof and having, at such date of
acquisition, the highest credit rating obtainable from S&P or from
Moody's;
(c) investments in certificates of deposit, banker's acceptances
and time deposits maturing within 180 days from the date of
acquisition thereof issued or guaranteed by or placed with, and money
market deposit accounts issued or offered by, any domestic office of
any commercial bank organized under the laws of the United States of
America or any State thereof which has a combined capital and surplus
and undivided profits of not less than $500,000,000;
(d) certificates of deposit in an amount less than or equal to
$100,000 in the aggregate issued by any other bank insured by the
Federal Deposit Insurance Corporation;
(e) money market funds invested primarily in one or more of the
foregoing; and
(f) fully collateralized repurchase agreements with a term of not
more than 30 days for securities described in clause (a) above and
entered into with a financial institution satisfying the criteria
described in clause (c) above.
"Permitted Securities Options" means any stock options, restricted
----------------------------
stock and other rights of any kind in or with respect to Stock of the Company or
Borrower issued or granted to, or held by, any employee or director of the
Company or Borrower.
23
"Person" means any natural person, corporation, limited liability
------
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
----
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which Borrower or any
ERISA Affiliate is (or, if such plan were terminated, would under Section 4069
of ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"PML" with respect to any Project, means the probable maximum loss for
---
such Project for purposes of earthquake insurance coverage.
"Prepayment Date" has the meaning assigned to such term in Section
---------------
2.11(c) hereof.
"Prime Rate" means the rate of interest per annum publicly announced
----------
from time to time by The Chase Manhattan Bank as its prime rate in effect at its
principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
"Project" means any retail properties owned, directly or indirectly,
-------
by any of the Consolidated Businesses or Minority Holdings and references to any
named Projects mean the Projects so identified on Schedule 5.13.
-------------
"Prometheus" means Prometheus Western Retail, LLC, a Delaware limited
----------
liability company.
"Property" means any Real Property or personal property, plant,
--------
building, facility, structure, equipment, General Intangible, Receivable, or
other asset owned or leased by any Consolidated Businesses or any Minority
Holding.
"Real Property" means all of present and future right, title and
-------------
interest (including, without limitation, any leasehold estate) in (i) any plots,
pieces or parcels of land, (ii) any Improvements of every nature whatsoever (the
rights and interests described in clauses (i) and (ii) above being the
"Premises"), (iii) all easements, rights of way, gores of land or any lands
occupied by streets, ways, alleys, passages, sewer rights, water courses, water
rights and powers, and public places adjoining such land, and any other
interests in property constituting appurtenances to the Premises, or which
hereafter shall in any way belong, relate or be appurtenant thereto, (iv) all
hereditaments, gas, oil, minerals (with the right to extract, sever and remove
such gas, oil and minerals), and easements, of every nature whatsoever, located
in, on or benefiting the Premises and (v) all other rights and privileges
thereunto belonging or appertaining and all extensions, additions, improvements,
betterments, renewals, substitutions and replacements to or of any of the rights
and interests described in clauses (iii) and (iv) above.
"Register" has the meaning set forth in Section 9.04.
--------
24
"Registration Rights Agreement" means the Registration Rights
-----------------------------
Agreement dated as of June 1, 1997, between the Company and Prometheus.
"REIT" means a domestic trust or corporation that qualifies as a real
----
estate investment trust under the provisions of Sections 856, et seq. of the
-- ---
Code.
"Related Parties" means, with respect to any specified Person, such
---------------
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Release" means any release, spill, emission, leaking, pumping,
-------
pouring, dumping, emptying, injection, deposit, disposal, discharge, dispersal,
leaching or migration on or into the indoor or outdoor environment or into or
out of any property.
"Released Property" has the meaning assigned to such term in Section
-----------------
2.11(e) hereof.
"Remedial Action" means all actions, including without limitation any
---------------
Capital Expenditures, required or necessary to (i) clean up, remove, treat or in
any other way address any Hazardous Material or other substance in the indoor or
outdoor environment, (ii) prevent the Release or threat of Release, or minimize
the further Release, of any Hazardous Material or other substance so it does not
migrate or endanger or threaten to endanger public health or welfare or the
indoor or outdoor environment, (iii) perform pre-remedial studies and
investigations or post-remedial monitoring and care, or (iv) bring facilities on
any property owned or leased by Borrower or any of its Subsidiaries into
compliance with all Environmental Laws and Environmental Permits.
"Required Lenders" means, at any time, Lenders having Commitments
----------------
representing at least 66.7% of the sum of the total Commitments at such time.
"Requirement of Law" means, as to any Person, the certificate of
------------------
incorporation and by-laws or other organizational or governing documents of such
Person, and all federal, state and local laws, rules and regulations, including,
without limitation, federal, state or local securities, antitrust and licensing
laws, all food, health and safety laws, and all applicable trade laws and
requirements, including, without limitation, all disclosure requirements of
Environmental Laws, ERISA and all orders, judgments, decrees or other
determinations of any Governmental Authority or arbitrator, applicable to or
binding upon such Person or any of its property or to which such Person or any
of its property is subject.
"Responsible Officer" means the President or any Senior Vice President
-------------------
or Financial Officer of the General Partner.
"S&P" means Standard & Poor's.
---
"Secured Indebtedness" means any Indebtedness secured by a Lien.
--------------------
25
"Statutory Reserve Rate" means a fraction (expressed as a decimal),
----------------------
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board to which the Administrative Agent is subject (a) with
respect to the Base CD Rate, for new negotiable non-personal time deposits in
dollars of over $100,000 with maturities approximately equal to three months and
(b) with respect to the Adjusted LIBO Rate, for eurocurrency funding (currently
referred to as "Eurocurrency Liabilities" in Regulation D of the Board). Such
reserve percentages shall include those imposed pursuant to such Regulation D.
Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be
subject to such reserve requirements without benefit of or credit for proration,
exemptions or offsets that may be available from time to time to any Lender
under such Regulation D or any comparable regulation. The Statutory Reserve
Rate shall be adjusted automatically on and as of the effective date of any
change in any reserve percentage.
"Stock" means shares of capital stock, beneficial or partnership
-----
interests, participations or other equivalents (regardless of how designated) of
or in a corporation or equivalent entity, whether voting or non-voting, and
includes, without limitation, common stock and preferred stock.
"Stock Equivalents" means all securities (other than Stock)
-----------------
convertible into or exchangeable for Stock and all warrants, options or other
rights to purchase or subscribe for any stock, whether or not presently
convertible, exchangeable or exercisable.
"Stock Purchase Agreement" means the Stock Purchase Agreement dated as
------------------------
of July 1, 1997, by and among Prometheus, LFSRI and the Company.
"Stock Purchase Certification" has the meaning set forth in the
----------------------------
Security Agreement.
"Stockholders Agreement" means the Stockholders Agreement dated as of
----------------------
June 1, 1997, by and among Lazard Freres Real Estate Investors, LLC, LFSRI,
Prometheus and the Company.
"Subordination and Attornment Agreement" means a Subordination, Non-
--------------------------------------
Disturbance and Attornment Agreement, (in recordable form and otherwise in the
form attached as Exhibit F hereto).
---------
"subsidiary" means, with respect to any Person (the "parent") at any
---------- ------
date, any corporation, limited liability company, partnership, association or
other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as any
other corporation, limited liability company, partnership, association or other
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the
26
ordinary voting power or, in the case of a partnership, more than 50% of the
general partnership interests are, as of such date, owned, controlled or held,
or (b) that is, as of such date, otherwise Controlled, by the parent or one or
more subsidiaries of the parent or by the parent and one or more subsidiaries of
the parent.
"Subsidiary" means any subsidiary of the Company and/or Borrower.
----------
"Subsidiary Guarantor" means each direct or indirect wholly owned
--------------------
Subsidiary of the Company and/or Borrower which owns, either directly or
indirectly, all or any portion of any Project which is Unencumbered, of which
there are none as of the date hereof.
"Subsidiary Guaranty" means a guaranty, in substantially the form of
-------------------
Exhibit G, executed by each Subsidiary Guarantor, as such guaranty may be
------- -
amended, supplemented or otherwise modified from time to time.
"Taxes" means any and all present or future taxes, levies, imposts,
-----
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Three-Month Secondary CD Rate" means, for any day, the secondary
-----------------------------
market rate for three-month certificates of deposit reported as being in effect
on such day (or, if such day is not a Business Day, the next preceding Business
Day) by the Board through the public information telephone line of the Federal
Reserve Bank of New York (which rate will, under the current practices of the
Board, be published in Federal Reserve Statistical Release H.15(519) during the
week following such day) or, if such rate is not so reported on such day or such
next preceding Business Day, the average of the secondary market quotations for
three-month certificates of deposit of major money center banks in New York City
received at approximately 10:00 a.m., New York City time, on such day (or, if
such day is not a Business Day, on the next preceding Business Day) by the
Administrative Agent from three negotiable certificate of deposit dealers of
recognized standing selected by it.
"Total Adjusted EBITDA" means, for any period, the aggregate sum of
---------------------
the Adjusted EBITDA for the Consolidated Businesses.
"Total Interest Expense" means, for any period, the sum of (i)
----------------------
interest expense of the Consolidated Businesses paid during such period and (ii)
interest expense of the Consolidated Businesses accrued and/or capitalized for
such period and (iii) the portion of the interest expense of Minority Holdings
allocable to Borrower in accordance with GAAP and paid during such period and
(iv) the portion of the interest expense of Minority Holdings allocable to
Borrower in accordance with GAAP and accrued and/or capitalized for such period,
in each case including participating interest expense but excluding
extraordinary interest expense, and net of amortization of deferred costs
associated with new financings or refinancings of existing Indebtedness.
"Total Outstanding Indebtedness" means, for any period, the sum of (i)
------------------------------
the amount of Indebtedness of the Consolidated Businesses set forth on the then
most recent quarterly financial statements of Borrower, prepared in accordance
with GAAP, plus any
27
additional Indebtedness incurred by the Consolidated Businesses since the time
of such statements, and (ii) the outstanding amount of Minority Holding
Indebtedness allocable in accordance with GAAP to any of the Consolidated
Businesses as of the time of determination, plus any additional Minority Holding
Indebtedness incurred by the Minority Holdings allocable in accordance with GAAP
to any of the Consolidated Businesses as of the time of determination, and (iii)
to the extent quantified, the Contingent Obligations of the Consolidated
Businesses and, to the extent allocable to the Consolidated Businesses in
accordance with GAAP, of the Minority Holdings.
"Total Outstanding Indebtedness Limitation" has the meaning set forth
-----------------------------------------
in Section 6.01(a) hereof.
"Total Value" means, for any period, the aggregate sum of (i) with
-----------
respect to any Project or Minority Holding, which has been owned by Borrower or
the Consolidated Businesses for not less than four (4) consecutive fiscal
quarters, as of the first day of each fiscal quarter for the immediately
preceding consecutive four (4) fiscal quarters, an amount equal to Adjusted NOI
relating to such Project or Minority Holding for such period divided by 9.5%,
----------
and (ii) with respect to any Project or Minority Holding, which has been owned
by Borrower or the Consolidated Businesses for less than four (4) consecutive
fiscal quarters, an amount equal to Borrower's Investment in such Project or
Minority Holding, and (iii) the Cash and Cash Equivalents of the Consolidated
Business.
"Transactions" means the execution, delivery and performance by
------------
Borrower of this Agreement, the borrowing of Loans, the use of the proceeds
thereof and the issuance of Letters of Credit hereunder.
"Type", when used in reference to any Loan or Borrowing, refers to
----
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the Alternate
Base Rate.
"Unconsolidated Entity" means, with respect to any Person, at any
---------------------
date, any other Person in whom such Person holds an investment, which investment
is accounted for in the financial statements of such Person on an equity basis
of accounting and whose financial results would not be consolidated under GAAP
with the financial results of such Person on the consolidated financial
statements of such Person, if such statements were prepared as of such date.
"Unencumbered" means, with respect to any Project, at any date of
------------
determination, the circumstance that such Project on such date:
(a) is not subject to any Liens (including restrictions on
transferability or assignability) of any kind (including any such Lien
or restriction imposed by (i) any agreement governing Indebtedness,
and (ii) the organizational documents of Borrower or any of its
Subsidiaries or Eligible Minority Holdings), but excluding Permitted
Encumbrances;
(b) is not subject to any agreement (including (i) any agreement
governing Indebtedness, and (ii) if applicable, the organizational
28
documents of Borrower or any of its Subsidiaries or Eligible Minority
Holdings) which prohibits or limits the ability of Borrower or any of
its Subsidiaries or Eligible Minority Holdings to create, incur,
assume or suffer to exist any Lien upon such Project, other than
Permitted Encumbrances (excluding any agreement or organizational
document which limits generally the amount of Indebtedness which may
be incurred by Borrower or its Subsidiaries or Eligible Minority
Holdings); and
(c) is not subject to any agreement (including any agreement
governing Indebtedness) which entitles any Person to the benefit of
any Lien (other than Permitted Encumbrances) on such Project, or would
entitle any Person to the benefit of any such Lien upon the occurrence
of any contingency (including, without limitation, pursuant to an
"equal and ratable" clause).
For the purposes of this Agreement, any Project owned by a Subsidiary or
Eligible Minority Holding of Borrower shall not be deemed to be Unencumbered
unless both (i) such Project and (ii) all stock or ownership interests owned
directly or indirectly by Borrower in such Eligible Minority Holdings or
Subsidiary, is Unencumbered.
"Withdrawal Liability" means liability to a Multiemployer Plan as a
--------------------
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Classification of Loans and Borrowings. For purposes
--------------------------------------
of this Agreement, Loans may be classified and referred to by Type (e.g., a
"Eurodollar Loan"). Borrowings also may be classified and referred to by Type
(e.g., a "Eurodollar Borrowing").
SECTION 1.03. Terms Generally. The definitions of terms herein shall
---------------
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including"
shall be deemed to be followed by the phrase "without limitation". The word
"will" shall be construed to have the same meaning and effect as the word
"shall". Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein),
(b) any reference herein to any Person shall be construed to include such
Person's successors and assigns, (c) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words "asset" and "property" shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights.
29
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise expressly
----------------------
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided
--------
that, if Borrower notifies the Administrative Agent that Borrower requests an
----
amendment to any provision hereof to eliminate the effect of any change
occurring after the date hereof in GAAP or in the application thereof on the
operation of such provision (or if the Administrative Agent notifies Borrower
that the Required Lenders request an amendment to any provision hereof for such
purpose), regardless of whether any such notice is given before or after such
change in GAAP or in the application thereof, then such provision shall be
interpreted on the basis of GAAP as in effect and applied immediately before
such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments. Subject to the terms and conditions set
-----------
forth herein, each Lender agrees to make Loans to Borrower from time to time
during the Availability Period in an aggregate principal amount that will not
result in (a) such Lender's Credit Exposure exceeding such Lender's Commitment
or (b) the sum of the total Credit Exposures exceeding the total Commitments;
provided, however, that at no time shall any Lender be obligated to make a Loan
-------- -------
or Loans in excess of such Lender's Applicable Percentage of the Available
Credit. Within the foregoing limits and subject to the terms and conditions set
forth herein, Borrower may borrow, prepay and reborrow Loans.
SECTION 2.02. Loans and Borrowings. (a) Each Loan shall be made as
--------------------
part of a Borrowing consisting of Loans made by the Lenders ratably in
accordance with their respective Commitments. The failure of any Lender to make
any Loan required to be made by it shall not relieve any other Lender of its
obligations hereunder; provided that the Commitments of the Lenders are several
-------- ----
and no Lender shall be responsible for any other Lender's failure to make Loans
as required.
(b) Subject to Section 2.14, each Borrowing shall be comprised
entirely of ABR Loans or Eurodollar Loans as Borrower may request in accordance
herewith. Each Lender at its option may make any Eurodollar Loan by causing any
domestic or foreign branch or Affiliate of such Lender to make such Loan;
provided that (i) any exercise of such option shall not affect the obligation of
-------- ----
Borrower to repay such Loan in accordance with the terms of this Agreement and
(ii) each Lender shall use reasonable efforts to select a domestic or foreign
branch or Affiliate that would not result in Borrower being required to pay
additional amounts pursuant to Section 2.15 or Section 2.17.
(c) At the commencement of each Interest Period for any Eurodollar
Borrowing, such Borrowing shall be in an aggregate amount that is an integral
multiple of $500,000 and not less than $4,000,000. At the time that each ABR
Borrowing is
30
made, such Borrowing shall be in an aggregate amount that is an integral
multiple of $100,000 and not less than $1,000,000; provided that an ABR
-------- ----
Borrowing may be in an aggregate amount that is equal to the entire unused
balance of the total Commitments or that is required to finance the
reimbursement of an LC Disbursement as contemplated by Section 2.06(e).
Borrowings of more than one Type may be outstanding at the same time; provided
--------
that there shall not at any time be more than a total of 6 Eurodollar Borrowings
----
outstanding.
(d) Notwithstanding any other provision of this Agreement, Borrower
shall not be entitled to request, or to elect to convert or continue, any
Borrowing if the Interest Period requested with respect thereto would end after
the Maturity Date.
SECTION 2.03. Requests for Borrowings. To request a Borrowing,
-----------------------
Borrower shall notify the Administrative Agent of such request by telephone (a)
in the case of a Eurodollar Borrowing, not later than 12:00 noon, New York City
time, three Business Days before the date of the proposed Borrowing or (b) in
the case of an ABR Borrowing, not later than 12:00 noon, New York City time, one
Business Day before the date of the proposed Borrowing; provided that any such
-------- ----
notice of an ABR Borrowing to finance the reimbursement of an LC Disbursement as
contemplated by Section 2.06(e) may be given not later than 10:00 a.m., New York
City time, on the date of the proposed Borrowing. Each such telephonic
Borrowing Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Borrowing Request
in a form approved by the Administrative Agent and signed by Borrower. Each
such telephonic and written Borrowing Request shall specify the following
information in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing;
(iv) in the case of a Eurodollar Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated
by the definition of the term "Interest Period"; and
(v) the location and number of Borrower's account to which
funds are to be disbursed, which shall comply with the requirements of
Section 2.07.
If no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period is specified with
respect to any requested Eurodollar Borrowing, then Borrower shall be deemed to
have selected an Interest Period of one month's duration. Promptly following
receipt of a Borrowing Request in accordance with this Section, the
Administrative Agent shall advise each Lender of the details thereof and of the
amount of such Lender's Loan to be made as part of the requested Borrowing.
31
SECTION 2.04. Intentionally Deleted.
---------------------
SECTION 2.05. Intentionally Deleted.
---------------------
SECTION 2.06. Letters of Credit.
-----------------
(a) General. Subject to the terms and conditions set forth herein,
-------
Borrower may request the issuance of Letters of Credit for its own account, in a
form reasonably acceptable to the Administrative Agent and the Issuing Bank, at
any time and from time to time during the Availability Period. In the event of
any inconsistency between the terms and conditions of this Agreement and the
terms and conditions of any form of letter of credit application or other
agreement submitted by Borrower to, or entered into by Borrower with, the
Issuing Bank relating to any Letter of Credit, the terms and conditions of this
Agreement shall control.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
----------------------------------------------------------
Conditions. To request the issuance of a Letter of Credit (or the amendment,
----------
renewal or extension of an outstanding Letter of Credit), Borrower shall hand
deliver or telecopy (or transmit by electronic communication, if arrangements
for doing so have been approved by the Issuing Bank) to the Issuing Bank and the
Administrative Agent (reasonably in advance of the requested date of issuance,
amendment, renewal or extension) a notice requesting the issuance of a Letter of
Credit, or identifying the Letter of Credit to be amended, renewed or extended,
the date of issuance, amendment, renewal or extension, the date on which such
Letter of Credit is to expire (which shall comply with paragraph (c) of this
Section), the amount of such Letter of Credit, the name and address of the
beneficiary thereof and such other information as shall be necessary to prepare,
amend, renew or extend such Letter of Credit. If requested by the Issuing Bank,
Borrower also shall submit a letter of credit application on the Issuing Bank's
standard form in connection with any request for a Letter of Credit. A Letter of
Credit shall be issued, amended, renewed or extended only if (and upon issuance,
amendment, renewal or extension of each Letter of Credit Borrower shall be
deemed to represent and warrant that), after giving effect to such issuance,
amendment, renewal or extension (i) the LC Exposure shall not exceed
$25,000,000.00 and (ii) the sum of the total Credit Exposures shall not exceed
the total Commitments.
(c) Expiration Date. Each Letter of Credit shall expire at or prior to
---------------
the close of business on the earlier of (i) the date one year after the date of
the issuance of such Letter of Credit (or, in the case of any renewal or
extension thereof, one year after such renewal or extension) and (ii) the date
that is five Business Days prior to the Maturity Date.
(d) Participations. By the issuance of a Letter of Credit (or an
--------------
amendment to a Letter of Credit increasing the amount thereof) and without any
further action on the part of the Issuing Bank or the Lenders, the Issuing Bank
hereby grants to each Lender, and each Lender hereby acquires from the Issuing
Bank, a participation in such Letter of Credit equal to such Lender's Applicable
Percentage of the aggregate amount available to be drawn under such Letter of
Credit. In consideration and in
32
furtherance of the foregoing, each Lender hereby absolutely and unconditionally
agrees to pay to the Administrative Agent, for the account of the Issuing Bank,
such Lender's Applicable Percentage of each LC Disbursement made by the Issuing
Bank and not reimbursed by Borrower on the date due as provided in paragraph (e)
of this Section, or of any reimbursement payment required to be refunded to
Borrower for any reason. Each Lender acknowledges and agrees that its obligation
to acquire participations pursuant to this paragraph in respect of Letters of
Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including any amendment, renewal or extension of any
Letter of Credit or the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement. If the Issuing Bank shall make any LC Disbursement
-------------
in respect of a Letter of Credit, Borrower shall reimburse such LC Disbursement
by paying to the Administrative Agent an amount equal to such LC Disbursement
not later than 12:00 noon, New York City time, on the date that such LC
Disbursement is made, if Borrower shall have received notice of such LC
Disbursement prior to 10:00 a.m., New York City time, on such date, or, if such
notice has not been received by Borrower prior to such time on such date, then
not later than 12:00 noon, New York City time, on (i) the Business Day that
Borrower receives such notice, if such notice is received prior to 10:00 a.m.,
New York City time, on the day of receipt, or (ii) the Business Day immediately
following the day that Borrower receives such notice, if such notice is not
received prior to such time on the day of receipt; provided that, Borrower may,
-------- ----
subject to the conditions to borrowing set forth herein, request in accordance
with Section 2.03 or 2.05 that such payment be financed with an ABR Borrowing in
an equivalent amount and, to the extent so financed, Borrower's obligation to
make such payment shall be discharged and replaced by the resulting ABR
Borrowing. If Borrower fails to make such payment when due, the Administrative
Agent shall notify each Lender of the applicable LC Disbursement, the payment
then due from Borrower in respect thereof and such Lender's Applicable
Percentage thereof. Promptly following receipt of such notice, each Lender shall
pay to the Administrative Agent its Applicable Percentage of the payment then
due from Borrower, in the same manner as provided in Section 2.07 with respect
to Loans made by such Lender (and Section 2.07 shall apply, mutatis mutandis, to
------- --------
the payment obligations of the Lenders), and the Administrative Agent shall
promptly pay to the Issuing Bank the amounts so received by it from the Lenders.
Promptly following receipt by the Administrative Agent of any payment from
Borrower pursuant to this paragraph, the Administrative Agent shall distribute
such payment to the Issuing Bank or, to the extent that Lenders have made
payments pursuant to this paragraph to reimburse the Issuing Bank, then to such
Lenders and the Issuing Bank as their interests may appear. Any payment made by
a Lender pursuant to this paragraph to reimburse the Issuing Bank for any LC
Disbursement (other than the funding of ABR Loans as contemplated above) shall
not constitute a Loan and shall not relieve Borrower of its obligation to
reimburse such LC Disbursement.
(f) Obligations Absolute. Borrower's obligation to reimburse LC
--------------------
Disbursements as provided in paragraph (e) of this Section shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the
33
terms of this Agreement under any and all circumstances whatsoever and
irrespective of (i) any lack of validity or enforceability of any Letter of
Credit or this Agreement, or any term or provision therein; (ii) any draft or
other document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect; provided that payment by the Issuing Bank under such
-------- ----
Letter of Credit against presentation of such draft or document shall not have
constituted gross negligence or wilful misconduct of the Issuing Bank; (iii)
payment by the Issuing Bank under a Letter of Credit against presentation of a
draft or other document that does not comply with the terms of such Letter of
Credit; provided that such payment shall not have constituted gross negligence
-------------
or wilful misconduct of the Issuing Bank; or (iv) any other event or
circumstance whatsoever, whether or not similar to any of the foregoing, that
might, but for the provisions of this Section, constitute a legal or equitable
discharge of, or provide a right of setoff against, Borrower's obligations
hereunder; provided that such other circumstance or happening shall not have
-------- ----
been the result of gross negligence or wilful misconduct of the Issuing Bank.
Neither the Administrative Agent, the Lenders nor the Issuing Bank, nor any of
their Related Parties, shall have any liability or responsibility by reason of
or in connection with the issuance or transfer of any Letter of Credit or any
payment or failure to make any payment thereunder (irrespective of any of the
circumstances referred to in the preceding sentence), or any error, omission,
interruption, loss or delay in transmission or delivery of any draft, notice or
other communication under or relating to any Letter of Credit (including any
document required to make a drawing thereunder), any error in interpretation of
technical terms or any consequence arising from causes beyond the control of the
Issuing Bank; provided that the foregoing shall not be construed to excuse the
-------- ----
Issuing Bank from liability to Borrower to the extent of any direct damages (as
opposed to consequential damages, claims in respect of which are hereby waived
by Borrower to the extent permitted by applicable law) suffered by Borrower that
are caused by the Issuing Bank's failure to exercise care when determining
whether drafts and other documents presented under a Letter of Credit comply
with the terms thereof. The parties hereto expressly agree that, in the absence
of gross negligence or willful misconduct on the part of the Issuing Bank (as
finally determined by a court of competent jurisdiction), the Issuing Bank shall
be deemed to have exercised care in each such determination. In furtherance of
the foregoing and without limiting the generality thereof, the parties agree
that, with respect to documents presented which appear on their face to be in
substantial compliance with the terms of a Letter of Credit, the Issuing Bank
may, in its sole discretion, either accept and make payment upon such documents
without responsibility for further investigation, regardless of any notice or
information to the contrary, or refuse to accept and make payment upon such
documents if such documents are not in strict compliance with the terms of such
Letter of Credit.
(g) Disbursement Procedures. The Issuing Bank shall, promptly
-----------------------
following its receipt thereof, examine all documents purporting to represent a
demand for payment under a Letter of Credit. The Issuing Bank shall promptly
notify the Administrative Agent and Borrower by telephone (confirmed by
telecopy) of such demand for payment and whether the Issuing Bank has made or
will make an LC Disbursement thereunder; provided that any failure to give or
-------- ----
delay in giving such notice
34
shall not relieve Borrower of its obligation to reimburse the Issuing Bank and
the Lenders with respect to any such LC Disbursement.
(h) Interim Interest. If the Issuing Bank shall make any LC
----------------
Disbursement, then, unless Borrower shall reimburse such LC Disbursement in full
on the date such LC Disbursement is made, the unpaid amount thereof shall bear
interest, for each day from and including the date such LC Disbursement is made
to but excluding the date that Borrower reimburses such LC Disbursement, at the
rate per annum then applicable to ABR Loans; provided that, if Borrower fails to
-------- ----
reimburse such LC Disbursement when due pursuant to paragraph (e) of this
Section, then Section 2.13(d) shall apply. Interest accrued pursuant to this
paragraph shall be for the account of the Issuing Bank, except that interest
accrued on and after the date of payment by any Lender pursuant to paragraph (e)
of this Section to reimburse the Issuing Bank shall be for the account of such
Lender to the extent of such payment.
(i) Replacement of the Issuing Bank. The Issuing Bank may be
-------------------------------
replaced at any time by written agreement among Borrower, the Administrative
Agent, the replaced Issuing Bank and the successor Issuing Bank. The
Administrative Agent shall notify the Lenders of any such replacement of the
Issuing Bank. At the time any such replacement shall become effective, Borrower
shall pay all unpaid fees accrued for the account of the replaced Issuing Bank
pursuant to Section 2.12(b). From and after the effective date of any such
replacement, (i) the successor Issuing Bank shall have all the rights and
obligations of the Issuing Bank under this Agreement with respect to Letters of
Credit to be issued thereafter and (ii) references herein to the term "Issuing
Bank" shall be deemed to refer to such successor or to any previous Issuing
Bank, or to such successor and all previous Issuing Banks, as the context shall
require. After the replacement of an Issuing Bank hereunder, the replaced
Issuing Bank shall remain a party hereto and shall continue to have all the
rights and obligations of an Issuing Bank under this Agreement with respect to
Letters of Credit issued by it prior to such replacement, but shall not be
required to issue additional Letters of Credit.
(j) Cash Collateralization. If any Event of Default shall occur and
----------------------
be continuing, on the Business Day that Borrower receives notice from the
Administrative Agent or the Required Lenders demanding the deposit of cash
collateral pursuant to this paragraph, Borrower shall deposit in an account with
the Administrative Agent, in the name of the Administrative Agent and for the
benefit of the Lenders, an amount in cash equal to the LC Exposure as of such
date plus any accrued and unpaid interest thereon; provided that the obligation
to deposit such cash collateral shall become effective immediately, and such
deposit shall become immediately due and payable, without demand or other notice
of any kind, upon the occurrence of any Event of Default with respect to
Borrower described in clause (h) or (i) of Article VII. Such deposit shall be
held by the Administrative Agent as collateral for the payment and performance
of the obligations of Borrower under this Agreement. The Administrative Agent
shall have exclusive dominion and control, including the exclusive right of
withdrawal, over such account. Other than any interest earned on the investment
of such deposits, which investments shall be made at the option and sole
discretion of the Administrative Agent and at Borrower's risk and expense, such
deposits shall not bear interest. Interest or
35
profits, if any, on such investments shall accumulate in such account. Moneys in
such account shall be applied by the Administrative Agent to reimburse the
Issuing Bank for LC Disbursements for which it has not been reimbursed and, to
the extent not so applied, shall be held for the satisfaction of the
reimbursement obligations of Borrower for the LC Exposure at such time or, if
the maturity of the Loans has been accelerated (but subject to the consent of
the Required Lenders) be applied to satisfy other obligations of Borrower under
this Agreement. If Borrower is required to provide an amount of cash collateral
hereunder as a result of the occurrence of an Event of Default, such amount (to
the extent not applied as aforesaid) shall be returned to Borrower within three
Business Days after all Events of Default have been cured or waived.
SECTION 2.07. Funding of Borrowings. (a) Each Lender shall make
---------------------
each Loan to be made by it hereunder on the proposed date thereof by wire
transfer of immediately available funds by 12:00 noon, New York City time, to
the account of the Administrative Agent most recently designated by it for such
purpose by notice to the Lenders. The Administrative Agent will make such Loans
available to Borrower not later than 3:00 p.m., New York City time, by wire
transfer of immediately available funds to an account in the United States
designated by Borrower; provided that ABR Loans made to finance the
-------- ----
reimbursement of an LC Disbursement as provided in Section 2.06(e) shall be
remitted by the Administrative Agent to the Issuing Bank.
(b) Unless the Administrative Agent shall have received notice from
a Lender prior to the proposed date of any Borrowing that such Lender will not
make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Administrative Agent, then the
applicable Lender and Borrower severally agree to pay to the Administrative
Agent forthwith on demand such corresponding amount with interest thereon, for
each day from and including the date such amount is made available to Borrower
to but excluding the date of payment to the Administrative Agent, at (i) in the
case of such Lender, the greater of the Federal Funds Effective Rate and a rate
determined by the Administrative Agent in accordance with banking industry rules
on interbank compensation or (ii) in the case of Borrower, the interest rate
applicable to ABR Loans. If such Lender pays such amount to the Administrative
Agent, then such amount shall constitute such Lender's Loan included in such
Borrowing.
SECTION 2.08. Interest Elections. (a) Each Borrowing initially
------------------
shall be of the Type specified in the applicable Borrowing Request and, in the
case of a Eurodollar Borrowing, shall have an initial Interest Period as
specified in such Borrowing Request. Thereafter, Borrower may elect to convert
such Borrowing to a different Type or to continue such Borrowing and, in the
case of a Eurodollar Borrowing, may elect Interest Periods therefor, all as
provided in this Section. Borrower may elect different options with respect to
different portions of the affected Borrowing, in which case each such portion
shall be allocated ratably among the Lenders holding the Loans comprising
36
such Borrowing, and the Loans comprising each such portion shall be considered a
separate Borrowing.
(b) To make an election pursuant to this Section, Borrower shall
notify the Administrative Agent of such election by telephone by the time that a
Borrowing Request would be required under Section 2.03 if Borrower were
requesting a Borrowing of the Type resulting from such election to be made on
the effective date of such election. Each such telephonic Interest Election
Request shall be irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the Administrative Agent of a written Interest Election Request in a
form approved by the Administrative Agent and signed by Borrower.
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request
applies and, if different options are being elected with respect to different
portions thereof, the portions thereof to be allocated to each resulting
Borrowing (in which case the information to be specified pursuant to clauses
(iii) and (iv) below shall be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing
or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of
the term "Interest Period."
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then Borrower shall be deemed to have selected
an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and of such
Lender's portion of each resulting Borrowing.
(e) If Borrower fails to deliver a timely Interest Election Request
with respect to a Eurodollar Borrowing prior to the end of the Interest Period
applicable thereto, then, unless such Borrowing is repaid as provided herein, at
the end of such Interest Period such Borrowing shall be converted to an ABR
Borrowing. Notwithstanding any contrary provision hereof, if an Event of Default
has occurred and is continuing and the Administrative Agent, at the request of
the Required Lenders, so notifies Borrower, then, so long as an Event of Default
is continuing (i) no outstanding
37
Borrowing may be converted to or continued as a Eurodollar Borrowing and (ii)
unless repaid, each Eurodollar Borrowing shall be converted to an ABR Borrowing
at the end of the Interest Period applicable thereto.
SECTION 2.09. Termination and Reduction of Commitments. (a) Unless
----------------------------------------
previously terminated, the Commitments shall terminate on the Maturity Date.
(b) Borrower may at any time terminate, or from time to time reduce,
the Commitments; provided that (i) each reduction of the Commitments shall be in
-------- ----
an amount that is an integral multiple of $1,000,000 and not less than
$5,000,000 and (ii) Borrower shall not terminate or reduce the Commitments if,
after giving effect to any concurrent prepayment of the Loans in accordance with
Section 2.11, the sum of the Credit Exposures would exceed the total
Commitments.
(c) Borrower shall notify the Administrative Agent of any election
to terminate or reduce the Commitments under paragraph (b) of this Section at
least three Business Days prior to the effective date of such termination or
reduction, specifying such election and the effective date thereof. Promptly
following receipt of any notice, the Administrative Agent shall advise the
Lenders of the contents thereof. Each notice delivered by Borrower pursuant to
this Section shall be irrevocable; provided that a notice of termination of the
-------- ----
Commitments delivered by Borrower may state that such notice is conditioned upon
the effectiveness of other credit facilities, in which case such notice may be
revoked by Borrower (by notice to the Administrative Agent on or prior to the
specified effective date) if such condition is not satisfied. Any termination or
reduction of the Commitments shall be permanent. Each reduction of the
Commitments shall be made ratably among the Lenders in accordance with their
respective Commitments.
SECTION 2.10. Repayment of Loans; Evidence of Debt. (a) Borrower
------------------------------------
hereby unconditionally promises to pay to the Administrative Agent for the
account of each Lender the then unpaid principal amount of each Loan on the
Maturity Date.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of Borrower to such Lender
resulting from each Loan made by such Lender, including the amounts of principal
and interest payable and paid to such Lender from time to time hereunder. All
amounts of principal and interest due and payable prior to January 1, 2000 shall
remain unaffected by the terms of this Agreement.
(c) The Administrative Agent shall maintain accounts in which it
shall record (i) the amount of each Loan made hereunder, the Type thereof and
the Interest Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from Borrower to each
Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder for the account of the Lenders and each Lender's share thereof.
38
(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall be prima facie evidence of the
------------
existence and amounts of the obligations recorded therein; provided that the
-------- ----
failure of any Lender or the Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect the obligation of Borrower to
repay the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans made by it be evidenced by a
Note. In such event, Borrower shall prepare, execute and deliver to such Lender
a Note payable to the order of such Lender (or, if requested by such Lender, to
such Lender and its registered assigns). Thereafter, the Loans evidenced by such
Note and interest thereon shall at all times (including after assignment
pursuant to Section 9.04) be represented by one or more Notes in such form
payable to the order of the payee named therein.
SECTION 2.11. Prepayment of Loans; Release of Mortgaged
-----------------------------------------
Property/Subsidiary Guaranty. (a) Borrower shall have the right at any time
----------------------------
and from time to time to prepay any Borrowing in whole or in part, subject to
prior notice in accordance with paragraph (b) of this Section.
(b) Borrower shall notify the Administrative Agent by telephone
(confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Borrowing, not later than 12:00 noon, New York City
time, three Business Days before the date of prepayment, or (ii) in the case of
prepayment of an ABR Borrowing, not later than 12:00 noon, New York City time,
one Business Day before the date of prepayment. Each such notice shall be
irrevocable and shall specify the prepayment date and the principal amount of
each Borrowing or portion thereof to be prepaid; provided that, if a notice of
-------------
prepayment is given in connection with a conditional notice of termination of
the Commitments as contemplated by Section 2.09, then such notice of prepayment
may be revoked if such notice of termination is revoked in accordance with
Section 2.09; provided further that, if the actual aggregate amount of any
-------- ------- ----
prepayment differs from the amount represented in Borrower's prepayment notice,
Borrower shall promptly deliver a follow-up notice to the Administrative Agent
specifying the additional principal amount which was actually, or which shall be
prepaid and, if applicable, pay to the Administrative Agent in accordance with
the provisions of this Section 2.11, the unpaid balance of the actual aggregate
amount of any prepayment as set forth in such follow-up notice. Promptly
following receipt of any such notice, and, if applicable, follow-up notice
relating to a Borrowing, the Administrative Agent shall advise the Lenders of
the contents thereof. Each partial prepayment of any Borrowing shall be in an
amount that would be permitted in the case of an advance of a Borrowing of the
same Type as provided in Section 2.02. Each prepayment of a Borrowing shall be
applied ratably to the Loans included in the prepaid Borrowing. Prepayments
shall be accompanied by accrued interest to the extent required by Section 2.13.
(c) If at any time from and after the Closing Date, (i) the Company
or Borrower merges or consolidates with another Person and the Company or
Borrower as the case may be, is not the surviving entity, or (ii) the Company,
Borrower, any of its consolidated Subsidiaries ceases to provide property
management services (excluding for
39
such purposes property management contracts with third parties that are
terminable on not more than 30 days' notice) to Projects accounting for at least
80% of the aggregate base rental revenues from all of the Projects in which
Borrower has an ownership interest (the date any such event shall occur being
the "Prepayment Date"), Borrower shall be required to prepay the Loans in their
---------------
entirety as if the Prepayment Date were the Maturity Date and, the Commitment
thereupon shall be terminated. Borrower shall immediately make such prepayment
on the principal amount prepaid and shall return or cause to be returned all
Letters of Credit to the Issuing Bank. In connection with the prepayment of any
Loan prior to the maturity thereof, Borrower shall also pay any applicable
expenses pursuant to Section 2.16 hereof. Each such prepayment shall be applied
to prepay ratably the Loans of the Lender. Amounts prepaid pursuant to this
clause (c) may not be reborrowed.
(d) If at any time the aggregate Credit Exposure of the Lenders at
such time exceeds the lower of the Borrowing Base or the then effective
Commitments at such time (a "Borrowing Base Imbalance"), Borrower shall prepay
------------------------
the Loans then outstanding in an amount equal to such excess, together with
accrued interest within one (1) Business Day of such event occurring.
(e) Provided that no Default or Event of Default has occurred and is
continuing, Borrower shall have the right, subject to the provisions of this
Section 2.11, to obtain a release of a Mortgaged Property from the Lien of the
Mortgage Documents relating thereto ("Mortgage Property Release"). In the event
-------------------------
Borrower seeks to obtain a Mortgage Property Release, the Administrative Agent
shall release such Mortgaged Property (the "Released Property") from the Lien of
-----------------
the Mortgage Documents relating thereto, but only upon satisfaction of all of
the following conditions:
(i) Any request for Mortgage Property Release shall be made in
writing to the Administrative Agent no less than five (5) Business
Days prior to the date of the requested Mortgage Property Release;
(ii) Borrower shall pay all of the Administrative Agent's
reasonable costs and expenses including counsel fees and
disbursements, incurred in connection with the Mortgage Property
Release and the review and approval of the documents and information
required to be delivered in connection therewith;
(iii) Borrower shall deliver to the Administrative Agent
simultaneously with the request referred to in clause (i) above, a
Borrowing Base Certificate signed by a Responsible Officer of
Borrower, representing and certifying the pro forma calculations after
--- -----
giving effect to the proposed Mortgage Property Release, and if such
pro forma Borrowing Base Certificate demonstrates that the Mortgage
Property Release would result in a Borrowing Base Imbalance, Borrower
shall, as a condition precedent to such Mortgage Property Release,
prepay Loans in accordance with clause (d) above; and
40
(f) Provided that no Default or Event of Default has occurred and is
continuing, Borrower shall have the right, subject to the provisions of this
Section 2.11, to obtain a release of a Subsidiary Guaranty in the event that the
applicable Subsidiary Guarantor proposes to encumber its Projects otherwise than
to secure the Obligations. In the event Borrower seeks such a release of a
Subsidiary Guaranty, the Administrative Agent shall release such Subsidiary
Guaranty, but only upon satisfaction of all of the following conditions:
(i) Any request for such release shall be made in writing to
the Administrative Agent no less than five (5) Business Days prior to
the date of the requested release;
(ii) Borrower shall pay all of the Administrative Agent's
reasonable costs and expenses including counsel fees and
disbursements, incurred in connection with such release and the review
and approval of the documents and information required to be delivered
in connection therewith; and
(iii) In the event that any of the Projects owned by the
applicable Subsidiary Guarantor are included for purposes of the
Borrowing Base, Borrower shall deliver to the Administrative Agent
simultaneously with the request referred to in clause (i) above, a
Borrowing Base Certificate signed by a Responsible Officer of
Borrower, representing and certifying the pro forma calculations after
--- -----
omitting such Projects, and if such pro forma Borrowing Base
Certificate demonstrates that the omission of such Projects would
result in a Borrowing Base Imbalance, Borrower shall prepay Loans in
accordance with clause (d) above.
SECTION 2.12. Fees. (a) Borrower agrees to pay to the
----
Administrative Agent for the account of each Lender an unused facility fee,
which shall accrue at a rate of 0.50% per annum on the daily amount of the
unused Commitment of such Lender during the period from and including the date
hereof to but excluding the date on which such Commitment terminates. Accrued
unused facility fees shall be payable in arrears on the last day of March, June,
September and December of each year and on the date on which the Commitments
terminate, commencing as of the Effective Date but in no event later than
December 31, 1999, and nothing herein shall be deemed to affect the payment of
unused facility fees which have accrued prior to the Effective Date. All unused
facility fees shall be computed on the basis of a year of 360 days and shall be
payable for the actual number of days elapsed (including the first day but
excluding the last day).
(b) Borrower agrees to pay (i) to the Administrative Agent for the
account of each Lender a participation fee with respect to its participations in
Letters of Credit, which shall accrue at a rate of 2.50% per annum on the
average daily amount of such Lender's LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements) during the period from and
including the Effective Date to but
41
excluding the later of the date on which such Lender's Commitment terminates and
the date on which such Lender ceases to have any LC Exposure, and (ii) to the
Issuing Bank a fronting fee, which shall accrue at the rate or rates per annum
separately agreed upon between Borrower and the Issuing Bank on the average
daily amount of the LC Exposure (excluding any portion thereof attributable to
unreimbursed LC Disbursements) during the period from and including the
Effective Date to but excluding the later of the date of termination of the
Commitments and the date on which there ceases to be any LC Exposure, as well as
the Issuing Bank's standard fees with respect to the issuance, amendment,
renewal or extension of any Letter of Credit or processing of drawings
thereunder. Participation fees and fronting fees accrued through and including
the last day of March, June, September and December of each year shall be
payable on the third Business Day following such last day, commencing as of the
Effective Date but in no event later than December 31, 1999, and nothing herein
shall be deemed to affect the payment of participation fees and fronting fees
which have accrued prior to the Effective Date; provided that all such fees
-------- ----
shall be payable on the date on which the Commitments terminate and any such
fees accruing after the date on which the Commitments terminate shall be payable
on demand. Any other fees payable to the Issuing Bank pursuant to this paragraph
shall be payable within 10 days after demand. All participation fees and
fronting fees shall be computed on the basis of a year of 360 days and shall be
payable for the actual number of days elapsed (including the first day but
excluding the last day).
(c) Borrower agrees to pay to the Administrative Agent, for its own
account, fees payable in the amounts and at the times separately agreed upon
between Borrower and the Administrative Agent.
(d) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent (or to the Issuing
Bank, in the case of fees payable to it) for distribution, in the case of
facility fees and participation fees, to the Lenders. Fees paid shall not be
refundable under any circumstances.
SECTION 2.13. Interest. (a) The Loans comprising each ABR Borrowing
--------
shall bear interest at the Alternate Base Rate plus the Applicable Rate.
(a) The Loans comprising each Eurodollar Borrowing shall bear
interest, at the Adjusted LIBO Rate for the Interest Period in effect for such
Borrowing plus the Applicable Rate.
(b) Intentionally Deleted.
(c) Notwithstanding the foregoing, if any principal of or interest
on any Loan or any fee or other amount payable by Borrower hereunder is not paid
when due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest, after as well as before judgment, at a rate
per annum equal to (i) in the case of overdue principal of any Loan, 2% plus the
rate otherwise applicable to such Loan as provided in the preceding paragraphs
of this Section or (ii) in the case of any other amount, 2% plus the rate
applicable to ABR Loans as provided in paragraph (a) of this Section.
42
(d) Accrued interest on each Loan shall be payable in arrears on
each Interest Payment Date for such Loan and, upon termination of the
Commitments; provided that (i) interest accrued pursuant to paragraph (d) of
-------------
this Section shall be payable on demand, (ii) in the event of any repayment or
prepayment of any Loan (other than a prepayment of an ABR Loan prior to the end
of the Availability Period), accrued interest on the principal amount repaid or
prepaid shall be payable on the date of such repayment or prepayment and (iii)
in the event of any conversion of any Eurodollar Loan prior to the end of the
current Interest Period therefor, accrued interest on such Loan shall be payable
on the effective date of such conversion.
(e) All interest hereunder shall be computed on the basis of a year
of 360 days, except that interest computed by reference to the Alternate Base
Rate at times when the Alternate Base Rate is based on the Prime Rate shall be
computed on the basis of a year of 365 days (or 366 days in a leap year), and in
each case shall be payable for the actual number of days elapsed (including the
first day but excluding the last day). The applicable Alternate Base Rate or
Adjusted LIBO Rate or shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
SECTION 2.14. Alternate Rate of Interest. If prior to the
--------------------------
commencement of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination
shall be conclusive absent manifest error) that adequate and
reasonable means do not exist for ascertaining the Adjusted LIBO Rate
for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders
that the Adjusted LIBO Rate for such Interest Period will not
adequately and fairly reflect the cost to such Lenders of making or
maintaining their Loans included in such Borrowing for such Interest
Period;
then the Administrative Agent shall give notice thereof to Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective
and, (ii) if any Borrowing Request requests a Eurodollar Borrowing, such
Borrowing shall be made as an ABR Borrowing.
SECTION 2.15. Increased Costs. (a) If any Change in Law shall:
---------------
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for
the account of, or credit extended by, any Lender (except any such
reserve requirement reflected in the Adjusted LIBO Rate) or the
Issuing Bank; or
(ii) impose on any Lender or the Issuing Bank or the London
interbank market any other condition affecting this Agreement or
43
Eurodollar Loans made by such Lender or any Letter of Credit or
participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or the
Issuing Bank of participating in, issuing or maintaining any Letter of Credit or
to reduce the amount of any sum received or receivable by such Lender or the
Issuing Bank hereunder (whether of principal, interest or otherwise), then
Borrower will pay in accordance with clause (c) hereof to such Lender or the
Issuing Bank, as the case may be, such additional amount or amounts as will
compensate such Lender or the Issuing Bank, as the case may be, for such
additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank determines that any Change in
Law regarding capital requirements has or would have the effect of reducing the
rate of return on such Lender's or the Issuing Bank's capital or on the capital
of such Lender's or the Issuing Bank's holding company, if any, as a consequence
of this Agreement or the Loans made by, or participations in Letters of Credit
held by, such Lender, or the Letters of Credit issued by the Issuing Bank, to a
level below that which such Lender or the Issuing Bank or such Lender's or the
Issuing Bank's holding company could have achieved but for such Change in Law
(taking into consideration such Lender's or the Issuing Bank's policies and the
policies of such Lender's or the Issuing Bank's holding company with respect to
capital adequacy), then from time to time Borrower will pay in accordance with
clause (c) hereof to such Lender or the Issuing Bank, as the case may be, such
additional amount or amounts as will compensate such Lender or the Issuing Bank
or such Lender's or the Issuing Bank's holding company for any such reduction
suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth the
amount or amounts necessary to compensate such Lender or the Issuing Bank or its
holding company, as the case may be, as specified in paragraph (a) or (b) of
this Section shall be delivered to Borrower and shall be conclusive absent
manifest error. Borrower shall pay such Lender or the Issuing Bank, as the case
may be, the amount shown as due on any such certificate within 10 days after
receipt thereof.
(d) Failure or delay on the part of any Lender or the Issuing Bank
to demand compensation pursuant to this Section shall not constitute a waiver of
such Lender's or the Issuing Bank's right to demand such compensation; provided
--------
that Borrower shall not be required to compensate a Lender or the Issuing Bank
----
pursuant to this Section for any increased costs or reductions incurred more
than 180 days prior to the date that such Lender or the Issuing Bank, as the
case may be, notifies Borrower of the Change in Law giving rise to such
increased costs or reductions and of such Lender's or the Issuing Bank's
intention to claim compensation therefor; provided further that, if the Change
-------- ------- ----
in Law giving rise to such increased costs or reductions is retroactive, then
the 180-day period referred to above shall be extended to include the period of
retroactive effect thereof.
44
SECTION 2.16. Break Funding Payments. In the event of (a) the
----------------------
payment of any principal of any Eurodollar Loan other than on the last day of an
Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurodollar Loan other than on the last day
of the Interest Period applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Loan on the date specified in any notice delivered
pursuant hereto (regardless of whether such notice may be revoked under Section
2.11(b) and is revoked in accordance therewith), or (d) the assignment of any
Eurodollar Loan other than on the last day of the Interest Period applicable
thereto as a result of a request by Borrower pursuant to Section 2.19, then, in
any such event, Borrower shall compensate each Lender for the loss, cost and
expense actually incurred to such event. In the case of a Eurodollar Loan, such
loss, cost or expense to any Lender shall be deemed to include an amount
determined by such Lender to be the excess, if any, of (i) the amount of
interest which would have accrued on the principal amount of such Loan had such
event not occurred, at the Adjusted LIBO Rate that would have been applicable to
such Loan, for the period from the date of such event to the last day of the
then current Interest Period therefor (or, in the case of a failure to borrow,
convert or continue, for the period that would have been the Interest Period for
such Loan), over (ii) the amount of interest which would accrue on such
principal amount for such period at the interest rate which such Lender would
bid were it to bid, at the commencement of such period, for dollar deposits of a
comparable amount and period from other banks in the eurodollar market. A
certificate of any Lender setting forth any amount or amounts that such Lender
is entitled to receive pursuant to this Section shall be delivered to Borrower
and shall be conclusive absent manifest error. Borrower shall pay such Lender
the amount shown as due on any such certificate within 10 days after receipt
thereof.
SECTION 2.17. Taxes. (a) Any and all payments by or on account of
-----
any obligation of Borrower hereunder shall be made free and clear of and without
deduction for any Indemnified Taxes or Other Taxes; provided that if Borrower
-------- ----
shall be required by law to deduct any Indemnified Taxes or Other Taxes from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent, Lender or
Issuing Bank (as the case may be) receives an amount equal to the sum it would
have received had no such deductions been made, (ii) Borrower shall make such
deductions and (iii) Borrower shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
(b) In addition, Borrower shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
(c) Borrower shall indemnify the Administrative Agent, each Lender
and the Issuing Bank, within 10 days after written demand therefor, for the full
amount of any Indemnified Taxes or Other Taxes paid by the Administrative Agent,
such Lender or the Issuing Bank, as the case may be, on or with respect to any
payment by or on account of any obligation of Borrower hereunder (including
Indemnified Taxes or Other Taxes imposed or asserted on or attributable to
amounts payable under this Section) and any penalties, interest and reasonable
expenses arising therefrom or with respect thereto, whether or not such
Indemnified Taxes or Other Taxes were correctly or legally imposed
45
or asserted by the relevant Governmental Authority; provided that Borrower shall
-------------
not be required to indemnify the Administrative Agent, any Lender or the Issuing
Bank for any penalties, interest or expenses incurred as a result of gross
negligence or willful misconduct of the Administrative Agent, such Lender or the
Issuing Bank, as the case may be. A certificate as to the amount of such payment
or liability delivered to Borrower by a Lender or the Issuing Bank, or by the
Administrative Agent on its own behalf or on behalf of a Lender or the Issuing
Bank, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by Borrower to a Governmental Authority, Borrower shall deliver to
the Administrative Agent the original or a certified copy of a receipt issued by
such Governmental Authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment reasonably satisfactory
to the Administrative Agent.
(e) Each Foreign Lender, so long as such Foreign Lender remains
lawfully able to do so, shall provide Borrower with Internal Revenue Service
form 1001 or 4224, as appropriate, or any successor form prescribed by the
Internal Revenue Service, certifying that such Foreign Lender is entitled to
benefits under an income tax treaty to which the United States is a party which
reduces the rate of withholding tax on payments of interest or certifying that
the income receivable pursuant to this Agreement is effectively connected with
the conduct of a trade or business in the United States. If the form provided by
a Foreign Lender at the time such Foreign Lender first became a party to this
Agreement or at any time thereafter (other than by reason of a change in United
States law, or a change in the terms of any treaty to which the United States is
a party after the date hereof, or any interpretation thereof), indicates a
United States interest withholding tax rate in excess of zero, withholding tax
at such rate shall be considered excluded from the definition of "Indemnified
Taxes" for periods governed by such form. If any form or document referred to in
this subsection (e) requires the disclosure of information, other than
information necessary to compute the tax payable and information required on the
date hereof by Internal Revenue Service form 1001 or 4224, that the Foreign
Lender reasonably considers to be confidential, the Foreign Lender shall give
notice thereof to Borrower and shall not be obligated to include in such form or
document such confidential information unless the failure to provide such
information would result in Borrower being required to pay such Lender
Indemnified Taxes or Other Taxes pursuant to this Section 2.17.
(f) For any period with respect to which a Foreign Lender has failed
to provide Borrower with the appropriate form pursuant to Section 2.17(e)
(unless such failure is due to a change in treaty, law or regulation, or any
interpretation thereof, occurring subsequent to the date on which a form
originally was required to be provided or because the Foreign Lender is not
lawfully able to do so), such Foreign Lender shall not be entitled to
indemnification under Section 2.17(a) with respect to Taxes imposed by the
United States.
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-
------------------------------------------------------
offs. (a) Borrower shall make each payment required to be made by it hereunder
----
46
(whether of principal, interest, fees or reimbursement of LC Disbursements, or
of amounts payable under Section 2.15, 2.16 or 2.17, or otherwise) prior to
12:00 noon, New York City time, on the date when due, in immediately available
funds, without set-off or counterclaim. Any amounts received after such time on
any date may, in the discretion of the Administrative Agent, be deemed to have
been received on the next succeeding Business Day for purposes of calculating
interest thereon. All such payments shall be made to the Administrative Agent
at its offices at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, except payments to be
made directly to the Issuing Bank as expressly provided herein and except that
payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly
to the Persons entitled thereto. The Administrative Agent shall distribute any
such payments received by it for the account of any other Person to the
appropriate recipient promptly following receipt thereof. If any payment
hereunder shall be due on a day that is not a Business Day, the date for payment
shall be extended to the next succeeding Business Day, and, in the case of any
payment accruing interest, interest thereon shall be payable for the period of
such extension. All payments hereunder shall be made in dollars.
(b) If at any time insufficient funds are received by and available
to the Administrative Agent to pay fully all amounts of principal, unreimbursed
LC Disbursements, interest and fees then due hereunder, such funds shall be
applied (i) first, towards payment of interest and fees then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
interest and fees then due to such parties, and (ii) second, towards payment of
principal and unreimbursed LC Disbursements then due hereunder, ratably among
the parties entitled thereto in accordance with the amounts of principal and
unreimbursed LC Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Loans or participations in LC Disbursements resulting in
such Lender receiving payment of a greater proportion of the aggregate amount of
its Loans and participations in LC Disbursements than the proportion received by
any other Lender, then the Lender receiving such greater proportion shall
purchase (for cash at face value) participations in the Loans and participations
in LC Disbursements of other Lenders to the extent necessary so that the benefit
of all such payments shall be shared by the Lenders ratably in accordance with
the aggregate amount of principal of and accrued interest on their respective
Loans and participations in LC Disbursements; provided that (i) if any such
-------- ----
participations are purchased and all or any portion of the payment giving rise
thereto is recovered, such participations shall be rescinded and the purchase
price restored to the extent of such recovery, without interest, and (ii) the
provisions of this paragraph shall not be construed to apply to any payment made
by Borrower pursuant to and in accordance with the express terms of this
Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans or participations
in LC Disbursements to any assignee or participant, other than to Borrower or
any Subsidiary or Affiliate thereof (as to which the provisions of this
paragraph shall apply). Borrower consents to the foregoing and agrees, to the
extent it may effectively do so under applicable law, that any Lender acquiring
a participation
47
pursuant to the foregoing arrangements may exercise against Borrower rights of
set-off and counterclaim with respect to such participation as fully as if such
Lender were a direct creditor of Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from
Borrower prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders or the Issuing Bank hereunder that Borrower
will not make such payment, the Administrative Agent may assume that Borrower
has made such payment on such date in accordance herewith and may, in reliance
upon such assumption, distribute to the Lenders or the Issuing Bank, as the case
may be, the amount due. In such event, if Borrower has not in fact made such
payment, then each of the Lenders or the Issuing Bank, as the case may be,
severally agrees to repay to the Administrative Agent forthwith on demand the
amount so distributed to such Lender or Issuing Bank with interest thereon, for
each day from and including the date such amount is distributed to it to but
excluding the date of payment to the Administrative Agent, at the greater of the
Federal Funds Effective Rate and a rate determined by the Administrative Agent
in accordance with banking industry rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to be made
by it pursuant to Section 2.05(c), 2.06(d) or (e), 2.07(b) or 2.18(d), then the
Administrative Agent may, in its discretion (notwithstanding any contrary
provision hereof), apply any amounts thereafter received by the Administrative
Agent for the account of such Lender to satisfy such Lender's obligations under
such Sections until all such unsatisfied obligations are fully paid.
SECTION 2.19. Mitigation Obligations; Replacement of Lenders. (a)
----------------------------------------------
If any Lender requests compensation under Section 2.15, or if Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.17, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment
of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.15 or 2.17, as the case may be, in the
future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. Borrower
hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.15, or if
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.17,
or if any Lender defaults in its obligation to fund Loans hereunder, then
Borrower may, at its sole expense and effort (provided that the payment of such
-------- ----
expense shall not in any way affect the ability of Borrower to pursue damages
from any Lender which defaults in its obligation to fund Loans hereunder,
including, without limitation, any expenses related to finding a replacement
Lender), upon notice to such Lender and the Administrative Agent, require such
Lender to assign and delegate, without recourse (in accordance with and subject
to
48
the restrictions contained in Section 9.04), all its interests, rights and
obligations under this Agreement to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such
assignment); provided that (i) unless such assignment is to an existing Lender,
-------------
Borrower shall have received the prior written consent of the Administrative
Agent (and, if a Commitment is being assigned, the Issuing Bank), which consent
shall not unreasonably be withheld, (ii) such Lender shall have received payment
of an amount equal to the outstanding principal of its Loans and participations
in LC Disbursements accrued interest thereon, accrued fees and all other amounts
payable to it hereunder, from the assignee (to the extent of such outstanding
principal and accrued interest and fees) or Borrower (in the case of all other
amounts) and (iii) in the case of any such assignment resulting from a claim for
compensation under Section 2.15 or payments required to be made pursuant to
Section 2.17, such assignment will result in a reduction in such compensation or
payments. A Lender shall not be required to make any such assignment and
delegation if, prior thereto, as a result of a waiver by such Lender or
otherwise, the circumstances entitling Borrower to require such assignment and
delegation cease to apply.
ARTICLE III
Representations and Warranties
------------------------------
Borrower represents and warrants to the Lenders that:
SECTION 3.01. Organization; Powers. Each of Borrower, the Company
--------------------
and their subsidiaries is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization, has all requisite power
and authority to carry on its business as now conducted and, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, is qualified to do business in,
and is in good standing in, every jurisdiction where such qualification is
required. Neither Borrower, the Company nor any of their subsidiaries are
"foreign persons" within the meaning of Section 1445 of the Code.
SECTION 3.02. Authorization; Enforceability. (a) The
-----------------------------
Transactions have been duly authorized by all necessary partnership action of
Borrower and the General Partner has the requisite power and authority to
execute, deliver and perform this Agreement and the other Loan Documents on
behalf of Borrower. This Agreement has been duly executed and delivered by
Borrower and constitutes a legal, valid and binding obligation of Borrower,
enforceable in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors' rights
generally and subject to general principles of equity, regardless of whether
considered in a proceeding in equity or at law.
(b) Schedule 3.02(b) contains a diagram indicating as of the
Effective Date the ownership structure of Borrower, and any other Person in
which Borrower holds a direct or indirect partnership, joint venture or other
equity interest, indicating the nature of such interest with respect to each
Person included in such diagram and accurately sets
49
forth (1) the correct legal name of such Person, the jurisdiction of its
incorporation or organization and the jurisdictions in which it is qualified to
transact business as a foreign corporation, or otherwise, and (2) the
authorized, issued and outstanding shares or interests of each class of
Securities of the Company. As of the Effective Date, none of such issued and
outstanding Securities is subject to any vesting, redemption, or repurchase
agreement, and there are no warrants or options (other than Permitted Securities
Options) outstanding with respect to such Securities, except as noted on such
Schedule. The outstanding Capital Stock of the Company is duly authorized,
validly issued, fully paid and nonassessable.
SECTION 3.03. Governmental Approvals; No Conflicts. The Transactions
------------------------------------
(a) do not require any consent or approval of, registration or filing with, or
any other action by, any Governmental Authority, except such as have been
obtained or made and are in full force and effect, (b) will not violate any
applicable law or regulation or the charter, by-laws, partnership agreement or
other organizational documents of Borrower or any of its Subsidiaries, or the
Company or any order of any Governmental Authority, (c) will not violate or
result in a default under any indenture, agreement or other instrument binding
upon Borrower or any of its Subsidiaries or its assets, or give rise to a right
thereunder to require any payment to be made by Borrower or any of its
Subsidiaries, and (d) will not result in the creation or imposition of any Lien
on any asset of Borrower or any of its Subsidiaries other than Permitted
Encumbrances.
SECTION 3.04. Financial Condition; No Material Adverse Change. (a)
-----------------------------------------------
Each of Borrower and the Company has heretofore furnished to the Lenders (i) in
the case of the Company, its annual audited financial statements for the fiscal
year ended December 31, 1997, and the fiscal year ended December 31, 1998,
reported on by Deloitte & Touche, independent public accountants, and (ii) in
the case of Borrower, its unaudited annual financial statements for the fiscal
year ended December 31, 1997, and the fiscal year ended December 31, 1998
certified by its chief financial officer, and (iii) the quarterly financial
statements for each of the Borrower and the Company for the fiscal quarters
ended March 31, 1999, June 30, 1999, and September 30, 1999. Such financial
statements present fairly, in all material respects, the financial position and
results of operations and cash flows of the Company and Borrower and its
consolidated Subsidiaries as of such dates and for such periods in accordance
with GAAP, subject, in the case of the Company's statements to year-end audit
adjustments.
(b) Neither the Company, Borrower nor any of Borrower's Subsidiaries has
any Contingent Obligation or liability for any taxes, long-term leases or
commitments, not reflected in the most recent audited financial statements
delivered to the Administrative Agent pursuant to this Agreement or otherwise
disclosed to the Administrative Agent and the Lenders in writing, which will
have or is reasonably likely to have a Material Adverse Effect.
(c) Schedule 3.04 sets forth, as of the Effective Date, all Indebtedness of
the Company, Borrower and Borrower's Subsidiaries and, as of the Effective Date,
except as set forth on Schedule 3.04, there are no defaults in the payment of
principal or interest on any such Indebtedness and no payments thereunder have
been deferred or
50
extended beyond their stated maturity and there has been no material change in
the type or amount of such Indebtedness (except for the repayment of certain
Indebtedness) since the Effective Date.
SECTION 3.05. Properties. (a) Each of Borrower and its Subsidiaries
----------
and Eligible Minority Holdings own good and marketable fee simple absolute title
to all of the Real Property purported to be owned by them, which Real Property
is at the date hereof described in Schedule 3.05(a), and good and marketable
title to, or valid leasehold interests in, all other properties and assets
purported to be leased by Borrower or any of its Subsidiaries or Eligible
Minority Holdings. Each of Borrower and its Subsidiaries or Eligible Minority
Holdings received all deeds, assignments, waivers, consents, non-disturbance and
recognition or similar agreements, bills of sale and other documents, and have
duly effected all recordings, filings and other actions necessary to establish,
protect and perfect Borrower's and its Subsidiaries' or Eligible Minority
Holdings' right, title and interest in and to all such property except for such
documents or actions the failure to obtain or accomplish which would not have a
Material Adverse Effect.
(b) All material Real Property leased at the date hereof by Borrower or any
of its Subsidiaries or Eligible Minority Holdings is listed on Schedule 3.05(b).
Each of such leases is valid and enforceable in accordance with its terms and is
in full force and effect. Borrower has delivered to the Administrative Agent
true and complete copies of each of such leases and all documents affecting the
rights or obligations of Borrower or any of its Subsidiaries or Eligible
Minority Holdings which is a party thereto, including, without limitation, any
non-disturbance and recognition agreements, subordination agreements, attornment
agreements and agreements regarding the term or rental of any of the leases.
None of Borrower or any of its respective Subsidiaries or Eligible Minority
Holdings nor, to the knowledge of Borrower, any other party to any such lease is
in default of its obligations thereunder or has delivered or received any notice
of default under any such lease, nor has any event occurred which, with the
giving of notice, the passage of time or both, would constitute a default under
any such lease, except for defaults which in the aggregate have no Material
Adverse Effect.
(c) All components of all improvements included within the Projects owned
or leased, as lessee, by Borrower or any of its Subsidiaries or Eligible
Minority Holding (collectively, "Improvements"), including, without limitation,
the roofs and structural elements thereof and the heating, ventilation, air
conditioning, plumbing, electrical, mechanical, sewer, waste water, storm water,
paving and parking equipment, systems and facilities included therein, are in
good working order and repair, subject to such exceptions which are not
reasonably likely to have, in the aggregate, a Material Adverse Effect. All
water, gas, electrical, steam, compressed air, telecommunication, sanitary and
storm sewage lines and systems and other similar systems serving the Projects
owned or leased by Borrower or any of its Subsidiaries or are installed and
operating and are sufficient to enable the Real Property owned or leased by
Borrower and its respective Subsidiaries or Eligible Minority Holdings to
continue to be used and operated in the manner currently being used and
operated, and neither Borrower nor any of its Subsidiaries or Eligible Minority
Holdings has any knowledge of any factor or
51
condition that reasonably could be expected to result in the termination or
material impairment of the furnishing thereof. No Improvement or portion thereof
is dependent for its access, operation or utility on any land, building or other
Improvement not included in the Real Property owned or leased by Borrower or any
of its Subsidiaries or Eligible Minority Holdings other than for access provided
pursuant to a recorded easement or other right of way establishing the right of
such access.
(d) All Permits required to have been issued or appropriate to enable all
Real Property owned or leased by Borrower or any of its Subsidiaries or Eligible
Minority Holdings to be lawfully occupied and used for all of the purposes for
which they are currently occupied and used have been lawfully issued and are in
full force and effect, other than those which in the aggregate have no Material
Adverse Effect.
(e) Neither Borrower nor any of its Subsidiaries or Eligible Minority
Holdings has received any notice, or has any knowledge, of any pending,
threatened or contemplated condemnation proceeding affecting any Real Property
owned or leased by Borrower or any of its Subsidiaries or Eligible Minority
Holdings or any part thereof, or any proposed termination or impairment of any
parking at any such owned or leased Real Property or of any sale or other
disposition of any Real Property owned or leased by Borrower or any of its
Subsidiaries or Eligible Minority Holdings or any part thereof in lieu of
condemnation, which in the aggregate, are reasonably likely to have a Material
Adverse Effect.
(f) Except for events or conditions not reasonably likely to have, in the
aggregate, a Material Adverse Effect, (i) no portion of any Real Property owned
or leased by Borrower or any of its Subsidiaries or Eligible Minority Holdings
has suffered any material damage by fire or other casualty loss which has not
heretofore been completely repaired and restored to its condition prior to such
casualty, and (ii) no portion of any Real Property owned or leased by Borrower
or any of its Subsidiaries or Eligible Minority Holdings is located in a special
flood hazard area as designated by any Federal Governmental Authorities.
(g) Each of Borrower and its Subsidiaries and Eligible Minority Holdings
owns, or is licensed to use, all trademarks, tradenames, copyrights, patents and
other intellectual property material to its business, and the use thereof by
Borrower and its Subsidiaries and Eligible Minority Holdings and does not
infringe upon the rights of any other Person, except for any such infringements
that, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect.
SECTION 3.06. Litigation and Environmental Matters. (a) There are
------------------------------------
no Legal Proceedings pending against or, to the knowledge of Borrower,
threatened against or affecting Borrower or any of its Subsidiaries (i) as to
which there is a reasonable possibility of an adverse determination and that, if
adversely determined, could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect (other than the Disclosed
Matters (which Borrower represents and warrants to the Lenders and the
Administrative Agent would not reasonably be expected
52
to have a Material Adverse Effect)) or (ii) that involve this Agreement or the
Transactions.
(b) Except for Disclosed Matters (which Borrower represents and
warrants to the Lenders and the Administrative Agent would not reasonably be
expected to have a Material Adverse Effect):
(i) to the best knowledge of Borrower and its Subsidiaries, all
Real Property leased or owned by Borrower or any of its Subsidiaries
or Eligible Minority Holdings free from contamination by any Hazardous
Material which could reasonably be expected to subject Borrower or any
of its Subsidiaries to Environmental Liabilities and Costs which would
have a Material Adverse Effect;
(ii) the operations of Borrower and each of its Subsidiaries or
Eligible Minority Holdings, and the operations at any Real Property
leased or owned by Borrower or any of its Subsidiaries or Eligible
Minority Holdings are in material compliance with all applicable
Environmental Laws;
(iii) neither Borrower nor any of its Subsidiaries or Eligible
Minority Holdings have liabilities with respect to Hazardous Materials
and, to the best knowledge of Borrower and its Subsidiaries, no facts
or circumstances exist which could give rise to liabilities with
respect to Hazardous Materials which could reasonably be expected to
subject Borrower or any of its Subsidiaries to Environmental
Liabilities and Costs which would have a Material Adverse Effect;
(iv) (A) Borrower and its Subsidiaries and Eligible Minority
Holdings and all Real Property owned or leased by Borrower or its
Subsidiaries and Eligible Minority Holdings have all Environmental
Permits necessary for the operations at such Real Property and are in
material compliance with such Environmental Permits, (B) there are no
Legal Proceedings pending nor, to the best knowledge of Borrower and
its Subsidiaries, threatened to revoke, or alleging the violation of,
such Environmental Permits, and (C) neither Borrower nor any of its
Subsidiaries or Eligible Minority Holdings have received any notice
from any source to the effect that there is lacking any Environmental
Permit required in connection with the current use or operation of any
property leased or owned by Borrower or any of its Subsidiaries or
Eligible Minority Holdings;
(v) neither Borrower's nor any of its Subsidiaries' or Eligible
Minority Holdings' current facilities and operations, nor, to the best
knowledge of Borrower and its Subsidiaries, any predecessor of
Borrower or any of its Subsidiaries or Eligible Minority Holdings, nor
any of Borrower's or its Subsidiaries' or Eligible Minority Holdings'
past
53
facilities and operations, nor to the best knowledge of Borrower
and its Subsidiaries, any owner of premises leased or operated by
Borrower and its Subsidiaries and Eligible Minority Holdings, are
subject to any outstanding written Order or contract, including
Environmental Liens, with any Governmental Authority or other Person,
or to any federal, state, local, foreign or territorial investigation
respecting (A) Environmental Laws, (B) Remedial Action, (C) any
Environmental Claim, or (D) the Release or threatened Release of any
Hazardous Material;
(vi) neither Borrower nor any of its Subsidiaries or Eligible
Minority Holdings are subject to any pending Legal Proceeding alleging
the violation of any Environmental Law with respect to a Project nor,
to the best knowledge of Borrower and its Subsidiaries, are any such
proceedings threatened;
(vii) neither Borrower nor any of its Subsidiaries or Eligible
Minority Holdings nor, to the best knowledge of Borrower and its
Subsidiaries, any predecessor of Borrower or any of its Subsidiaries
or Eligible Minority Holdings, nor to the best knowledge of Borrower
and its Subsidiaries any owner of premises leased by Borrower or any
of its Subsidiaries or Eligible Minority Holdings, have filed any
notice under federal, state or local, territorial or foreign law
indicating past or present treatment, storage, or disposal of or
reporting a Release of Hazardous Material into the environment;
(viii) none of the operations of Borrower or any of its
Subsidiaries or Eligible Minority Holdings or, to the best knowledge
of Borrower and its Subsidiaries, of any predecessor of Borrower or
any of its Subsidiaries or Eligible Minority Holdings, or, to the best
knowledge of Borrower and its Subsidiaries, of any owner of premises
leased by Borrower or any of its Subsidiaries or Eligible Minority
Holdings, involve or previously involved the generation,
transportation, treatment, storage or disposal of hazardous waste, as
defined under 40 C.F.R. Part 261.3 (in effect as of the date of this
Agreement) or any state, local, territorial or foreign equivalent; and
(ix) there is not now, nor to the best knowledge of Borrower and
its Subsidiaries, has there been in the past, on, in or under any Real
Property leased or owned by Borrower or any of its Subsidiaries or
Eligible Minority Holdings, to the best knowledge of Borrower and its
Subsidiaries or any of their predecessors (A) any underground storage
tanks or surface tanks, dikes or impoundments (other than for surface
water), (B) any friable asbestos-containing materials, (C) any
polychlorinated biphenyls, or (D) any radioactive substances other
than naturally-occurring radioactive material.
54
(c) Since the date of this Agreement, there has been no change in the
status of the Disclosed Matters that, individually or in the aggregate, has
resulted in, or materially increased the likelihood of, a Material Adverse
Effect.
SECTION 3.07. Compliance with Laws and Agreements. Each of Borrower
-----------------------------------
and its Subsidiaries is in compliance with all laws, regulations and orders of
any Governmental Authority applicable to it or its property and all indentures,
agreements and other instruments binding upon it or its property, except where
the failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect. No Default has occurred and is
continuing.
SECTION 3.08. Investment and Holding Company Status. Neither the
-------------------------------------
Company, Borrower nor any of its Subsidiaries is (a) an "investment company" as
defined in, or subject to regulation under, the Investment Company Act of 1940
or (b) a "holding company" as defined in, or subject to regulation under, the
Public Utility Holding Company Act of 1935.
SECTION 3.09. Taxes. Each of the Company, Borrower and its
-----
Subsidiaries has timely filed or caused to be filed all Tax returns and reports
required to have been filed and has paid or caused to be paid all Taxes required
to have been paid by it, except (a) Taxes that are being contested in good faith
by appropriate proceedings and for which Borrower or such Subsidiary, as
applicable, has set aside on its books adequate reserves or (b) to the extent
that the failure to do so could not reasonably be expected to result in a
Material Adverse Effect.
SECTION 3.10. ERISA. No ERISA Event has occurred or is reasonably
-----
expected to occur that, when taken together with all other such ERISA Events for
which liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. The present value of all accumulated
benefit obligations under each Plan (based on the assumptions used for purposes
of Statement of Financial Accounting Standards No. 87) did not, as of the date
of the most recent financial statements reflecting such amounts, exceed by more
than $250,000 the fair market value of the assets of such Plan, and the present
value of all accumulated benefit obligations of all underfunded Plans (based on
the assumptions used for purposes of Statement of Financial Accounting Standards
No. 87) did not, as of the date of the most recent financial statements
reflecting such amounts, exceed by more than $250,000 the fair market value of
the assets of all such underfunded Plans.
SECTION 3.11. Disclosure. Borrower has disclosed to the Lenders all
----------
agreements, instruments and corporate or other restrictions to which it or any
of its Subsidiaries is subject, and all other matters known to it, that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect. None of the reports, financial statements,
certificates or other information furnished by or on behalf of Borrower to the
Administrative Agent or any Lender in connection with the negotiation of this
Agreement or delivered hereunder (as modified or supplemented by other
information so furnished) contains any material misstatement of fact or omits to
state any material fact necessary to make the statements therein, in the light
of the
55
circumstances under which they were made, not misleading; provided that, with
-------- ----
respect to Projected financial information, Borrower represents only that such
information was prepared in good faith based upon assumptions believed to be
reasonable at the time.
SECTION 3.12. Insurance. Schedule 3.12 accurately sets forth all
---------
insurance policies and programs in effect with respect to the Property, assets
and business of Borrower and its Subsidiaries, as of January 1, 1999, specifying
for each such policy and program, (i) the amount thereof, (ii) the risks insured
against thereby, (iii) the name of the insurer and each insured party
thereunder, (iv) the policy or other identification number thereof, and (v) the
expiration date thereof. Borrower has delivered to the Administrative Agent
copies of all insurance policies set forth on Schedule 3.12. As of the
Effective Date, such insurance policies and programs (or substantially similar
policies and programs in compliance with Section 5.05 hereof) are in full force
and effect.
SECTION 3.13. REIT Status. The Company is organized in conformity
-----------
with the requirements for qualification as an equity-oriented REIT under the
Code. The Company has met all of the requirements for qualification as an
equity-oriented REIT under the Code for its fiscal year ended December 31, 1998.
The Company is in a position to qualify for its current fiscal year as a REIT
under the Code and its proposed methods of operation will enable it to so
qualify.
SECTION 3.14. Ownership of Projects, Minority Holdings and Property.
-----------------------------------------------------
Except with respect to encumbered Projects owned by special purpose entities
created for purposes of securitizing the mortgage loans encumbering the same,
ownership of all wholly owned Projects, Minority Holdings and other Property of
the Consolidated Businesses is held by Borrower and its direct or indirect
wholly-owned Subsidiaries and is not held directly by the Company.
ARTICLE IV
Conditions
----------
SECTION 4.01. Effective Date. The obligations of the Lenders to make
--------------
Loans and of the Issuing Bank to issue Letters of Credit hereunder shall not
become effective until the date on which each of the following conditions is
satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received
from each party hereto either (i) a counterpart of this Agreement and
all other Loan Documents to which it is a party, signed on behalf of
such party or (ii) written evidence satisfactory to the Administrative
Agent (which may include telecopy transmission of a signed signature
page of each such Loan Document) that such party has signed a
counterpart of this Agreement and all other Loan Documents required to
be delivered by the Administrative Agent.
56
(b) The Administrative Agent shall have received a favorable
written opinion (addressed to the Administrative Agent and the Lenders
and dated the Effective Date) of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for
Borrower, substantially in the form of Exhibit E, and covering such
---------
other matters relating to Borrower, the Company, this Agreement or the
Transactions as the Required Lenders shall reasonably request.
Borrower hereby requests such counsel to deliver such opinion.
(c) The Administrative Agent shall have received such documents and
certificates as the Administrative Agent or its counsel may reasonably
request relating to the organization, existence and good standing of
Borrower and the Company, the authorization of the Transactions and
any other legal matters relating to Borrower, the Company, and such
Subsidiaries, this Agreement or the Transactions, all in form and
substance satisfactory to the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a certificate,
dated the Effective Date and signed by the President, a Vice President
or a Financial Officer of the General Partner, confirming compliance
with the conditions set forth in paragraphs (a) and (b) of Section
4.02.
(e) No change in the business, assets, management, operations, or
financial condition of Borrower or any of its Properties shall have
occurred since September 30, 1997 which change, in the judgment of the
Administrative Agent, will have or is reasonably likely to have a
Material Adverse Effect.
(f) Except as disclosed to the Administrative Agent and the
Lenders, since September 30, 1997, neither Borrower nor the Company
shall not have (i) entered into any (as determined in good faith by
the Administrative Agent) commitment or transaction, including,
without limitation, transactions for borrowings and capital
expenditures, which are not in the ordinary course of Borrower's
business, (ii) declared or paid any dividends or other distributions,
(iii) established compensation or employee benefit plans, or (iv)
redeemed or issued any Stock or Stock Equivalents.
(g) Since September 30, 1997, no agreement or license relating to
the business, operations or employee relations of Borrower or any of
its Properties shall have been terminated, modified, revoked, breached
or declared to be in default, the termination, modification,
revocation, breach or default under which, in the reasonable judgment
of the Administrative Agent, would result in a Material Adverse
Effect.
(h) Since September 30, 1999, no material adverse change shall have
occurred in the conditions in the capital markets or the market for
loan syndications generally.
57
(i) The Administrative Agent shall have received all fees and other
amounts due and payable by Borrower on or prior to the Effective Date,
including, to the extent invoiced, reimbursement or payment of all
reasonable out-of-pocket expenses required to be reimbursed or paid by
Borrower hereunder.
(j) The Administrative Agent shall have received (i) a Borrowing
Base Certificate, dated the Effective Date and signed by a Responsible
Officer, together with copies of the Eligible Project Documents in
respect of each of the Eligible Projects shown listed thereon to the
extent not previously delivered, and (ii) a Compliance Certificate,
dated the Effective Date and signed by a Responsible Officer, in each
case reasonably satisfactory to the Administrative Agent.
(k) The Administrative Agent shall have received the Letter
Agreement.
(l) The Administrative Agent shall have received Mortgage Documents
in respect of each of the Initial Mortgaged Properties including,
without limitation, the payments specified in clause (g) of the
definition of Mortgaged Documents.
(m) The Administrative Agent shall have received (i) the Guaranty
duly executed by the Company, (ii) the Security Agreement duly
executed by the Company, together with Financing Statements (Form UCC-
1) under the Uniform Commercial Code of all jurisdictions as may be
necessary or, in the reasonable opinion of the Administrative Agent,
desirable to protect the security interest created thereunder and
(iii) each Subsidiary Guaranty, duly executed by the Subsidiary
Guarantor party thereto.
The Administrative Agent shall notify Borrower and the Lenders of the Effective
Date, and such notice shall be conclusive and binding.
SECTION 4.02. Each Credit Event. The obligation of each Lender to
-----------------
make a Loan on the occasion of any Borrowing, and of the Issuing Bank to issue,
amend, renew or extend any Letter of Credit, is subject to the satisfaction of
the following conditions:
(a) The representations and warranties of Borrower, the Company
and each Subsidiary Guarantor set forth in any of the Loan Documents
shall be true and correct in all material respects on and as of the
date of such Borrowing or the date of issuance, amendment, renewal or
extension of such Letter of Credit, as applicable.
(b) At the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such
58
Letter of Credit, as applicable, no Default or Event of Default shall
have occurred and be continuing.
(c) Borrower has not received written notice from the Required
Lenders that an event has occurred since the date of this Agreement
which has had, and continues to have, or is reasonable likely to have,
a Material Adverse Effect.
(d) The making of such Loan or the issuance, amendment, renewal or
extension of such Letter of Credit, as applicable, on such date does
not violate any Requirement of Law and is not enjoined, temporarily,
preliminary or permanently.
(e) The Administrative Agent shall have received a Borrowing Base
Certificate, dated as of the date of the proposed Borrowing and signed
by the President, a Vice President or a Financial Officer of the
General Partner, satisfactory to the Administrative Agent, together
with (to the extent not previously delivered) copies of the Eligible
Project Documents in respect of each Eligible Project listed thereon.
(f) In the event that such Loan is to be made or such Letter of
Credit is to be issued, amended, renewed or extended, the
Administrative Agent shall have received Mortgage Documents in respect
of each of the Eligible Projects included for purposes of the
Borrowing Base, including, without limitation, the payments specified
in clause (g) of the definition of Mortgaged Documents.
(g) The Administrative Agent shall not have received a Notice of
Breach.
(h) The Administrative Agent shall have received such additional
documents, information and materials as any Lender, through the
Administrative Agent, may reasonably request.
Each Borrowing and each issuance, amendment, renewal or extension of a Letter of
Credit shall be deemed to constitute a representation and warranty by Borrower
on the date thereof as to the matters specified in paragraphs (a) and (b) of
this Section.
ARTICLE V
Affirmative Covenants
---------------------
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full and all Letters of Credit shall have expired or terminated and
all LC Disbursements shall have been reimbursed, Borrower covenants and agrees
with the Lenders that:
59
SECTION 5.01. Financial Statements and Other Information. Borrower
------------------------------------------
will furnish to the Administrative Agent and each Lender:
(a) Quarterly Reports.
-----------------
(i) Borrower Quarterly Financial Reports. As soon as practicable, and
------------------------------------
in any event within forty-five (45) days after the end of each fiscal quarter in
each Fiscal Year (other than the last fiscal quarter in each Fiscal Year), a
consolidated balance sheet of Borrower and the related consolidated statements
of income, retained earnings and cash flow of Borrower (to be prepared and
delivered quarterly in conjunction with the other reports delivered hereunder at
the end of each fiscal quarter) for each such fiscal quarter, in each case in
the same form as the statements accepted by the Administrative Agent on the
Closing Date and, in comparative form, the corresponding figures for the
corresponding periods of the previous Fiscal Year, certified by a Financial
Officer of Borrower as fairly presenting the consolidated and consolidating
financial position of Borrower as of the dates indicated and the results of
their operations and cash flow for the months indicated in accordance with GAAP,
subject to normal year end audit adjustments.
(ii) Company Quarterly Financial Reports. As soon as practicable, and in
-----------------------------------
any event within forty-five (45) days after the end of each fiscal quarter in
each Fiscal Year (other than the last fiscal quarter in each Fiscal Year), the
Financial Statements of the Company and its Subsidiaries on Form 10-Q as at the
end of such period and a report setting forth in comparative form the
corresponding figures for the corresponding period of the previous Fiscal Year,
certified by a Financial Officer of the Company as fairly presenting the
consolidated and consolidating financial position of the Company and its
Subsidiaries as at the date indicated and the results of their operations and
cash flow for the period indicated in accordance with GAAP, subject to normal
adjustments.
(iii) Quarterly Compliance Certificates. Together with each delivery of
---------------------------------
any quarterly report pursuant to paragraph (a)(i) of this Section 5.01, Borrower
shall deliver (i) a Borrowing Base Certificate as of the end of such fiscal
quarter, executed by a Responsible Officer, together with (to the extent not
previously delivered) copies of the Eligible Project Documents in respect of
each of the Eligible Projects shown listed thereon, and (ii) a Compliance
Certificate as of the end of such fiscal quarter, executed by a Financial
Officer.
(iv) Quarterly Financial Statements With Respect to the Mortgaged
------------------------------------------------------------
Properties. As soon as practicable and in any event within forty-five (45) days
----------
after the end of each fiscal quarter in each Fiscal Year (other than the last
fiscal quarter in each Fiscal Year), a rent roll for each of the Mortgaged
Properties certified by a Financial Officer, together with a statement of gross
revenues, direct operating expenses, net income, capital expenditures, tenant
improvements and leasing commissions for each of the Mortgaged Properties as at
the end of such quarter, each of which statements shall (i) set forth in
comparative form, the figures for the corresponding periods during the previous
Fiscal Year, (ii) be prepared in reasonable detail and (iii) be certified by a
Financial Officer that they are complete and correct and that they fairly
present the gross
60
revenues, direct operating expenses and net income of each such property as at
the end of such fiscal quarter, in accordance with GAAP (subject to normal,
year-end audit adjustments).
(b) Annual Reports.
--------------
(i) Borrower Financial Statements. As soon as practicable, and in any
-----------------------------
event within ninety (90) days after the end of each Fiscal Year, a consolidated
balance sheet of Borrower and the related consolidated statements of income,
retained earnings and cash flow of Borrower (to be prepared and delivered
annually in conjunction with the other reports delivered hereunder at the end of
each Fiscal Year) for each such Fiscal Year, in each case in the same form as
the statements accepted by the Administrative Agent on the Closing Date and, in
comparative form, the corresponding figures for the corresponding periods of the
previous Fiscal Year, certified by a Financial Officer of Borrower as fairly
presenting the consolidated and consolidating financial position of Borrower as
of the dates indicated and the results of their operations and cash flow for the
months indicated in accordance with GAAP, subject to normal year end audit
adjustments.
(ii) Company Financial Statements. As soon as practicable, and in any
----------------------------
event within ninety (90) days after the end of each Fiscal Year, the Financial
Statements of the Company and its Subsidiaries on Form 10-K as at the end of
such Fiscal Year and a report setting forth in comparative form the
corresponding figures from the consolidated Financial Statements of the Company
and its Subsidiaries for the prior Fiscal Year accompanied by a report thereon
of Deloitte & Touche or other independent certified public accountants
acceptable to the Administrative Agent, which report shall be unqualified as to
scope of audit and shall state that such financial statements fairly present the
consolidated financial position of the Company and its Subsidiaries as at the
dates indicated and the results of their operations and cash flow for the
periods indicated in conformity with GAAP applied on a basis consistent with
prior years (except for changes with which Deloitte & Touche or any such other
independent certified public accountants, if applicable, shall concur and which
shall have been disclosed in the notes to the financial statements)(which report
shall be subject to the confidentiality limitations set forth herein); and (iii)
in the event that the report referred to in clause (ii) above is qualified, a
copy of the management letter or any similar report delivered to the Company or
to any officer or employee thereof by such independent certified public
accountants in connection with such financial statements. The Administrative
Agent and each Lender (through the Administrative Agent) may, with the consent
of the Company (which consent shall not be unreasonably withheld), communicate
directly with such accountants, with any such communication to occur together
with a representative of the Company, at the expense of the Administrative Agent
(or the Lender requesting such communication), upon reasonable notice and at
reasonable times during normal business hours.
(iii) Annual Compliance Certificates. Together with each delivery of
------------------------------
any annual report pursuant to clauses (i) and (ii) of this Section 5.01(b),
Borrower shall
61
deliver a Compliance Certificate as of the end of such Fiscal Year, executed by
a Financial Officer.
(iv) Tenant Bankruptcy Reports. As soon as practicable, and in any event
-------------------------
within ninety (90) days after the end of each Fiscal Year, Borrower shall
deliver a written report, in form reasonably satisfactory to the Administrative
Agent, of all bankruptcy proceedings filed by or against any tenant of any of
the Projects, which tenant occupies two percent (2%) or more of the gross
leasable area in the Projects in the aggregate. Borrower shall deliver to the
Administrative Agent and the Lenders, immediately upon Borrower's learning
thereof, of any bankruptcy proceedings filed by or against, or the cessation of
business or operations of, any tenant of any of the Projects which tenant
occupies two percent (2%) or more of the gross leasable area in the Projects in
the aggregate.
(v) Annual Financial Statements With Respect to the Mortgaged Properties.
--------------------------------------------------------------------
As soon as practicable and in any event within ninety (90) days after the end of
each Fiscal Year a rent roll for each of the Mortgaged Properties, together with
a statement of gross revenues, direct operating expenses, net income, capital
expenditures, tenant improvements and leasing commissions for each of the
Mortgaged Properties for such Fiscal Year, in each case certified by a Financial
Officer, together with an audited statement of gross revenues and direct
operating expenses for each of the Properties for such Fiscal Year, each of
which audited statements shall (i) set forth in comparative form, the figures
for gross income and direct operating expenses for the previous Fiscal Year;
provided that a comparative form shall not be required for the audited
-------- ----
statements delivered for the Fiscal Year 1997, (ii) be prepared in reasonable
detail, (iii) be accompanied by a report thereon of Deloitte & Touche or other
independent public accountants of comparable recognized national standing
acceptable to the Lender, (iv) be unqualified as to scope of audit and (v) state
that such consolidated statement presents fairly the gross revenues and direct
operating expenses as at the end of such Fiscal Year of each such statement in
accordance with GAAP.
(c) Concurrently with any delivery of financial statements under clause (a)
or (b) above, a certificate of a Financial Officer of Borrower (i) certifying as
to whether a Default has occurred and is continuing and, if a Default has
occurred and is continuing, specifying the details thereof and any action taken
or proposed to be taken with respect thereto, (ii) setting forth reasonably
detailed calculations demonstrating compliance with Sections 6.01(a) or (b), as
applicable and (iii) stating whether any change in GAAP or in the application
thereof has occurred since the date of the audited financial statements referred
to in Section 3.04 and, if any such change has occurred, specifying the effect
of such change on the financial statements accompanying such certificate;
(d) Intentionally Deleted;
(e) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of Borrower
or any
62
Subsidiary, or compliance with the terms of this Agreement, as the
Administrative Agent or any Lender may reasonably request.
SECTION 5.02. Notices of Material Events. (a) Borrower will furnish
--------------------------
to the Administrative Agent and each Lender prompt written notice of the
following:
(i) the occurrence of any Default;
(ii) the filing or commencement of any action, suit or proceeding
by or before any arbitrator or Governmental Authority against or
affecting Borrower or any Affiliate thereof that, if adversely
determined, could reasonably be expected to result in a Material
Adverse Effect;
(iii) the occurrence of any ERISA Event that, alone or together
with any other ERISA Events that have occurred, could reasonably be
expected to result in a Material Adverse Effect;
(iv) the occurrence of any one of the events (i) through (iv)
contemplated in the definition of Commitment Amount; and
(v) any other development that results in, or could reasonably
be expected to result in, a Material Adverse Effect.
(b) Borrower shall deliver to the Administrative Agent and the Lenders
written notice of each of the following not less than five (5) Business Days
after the occurrence thereof: (a) a sale, transfer or other disposition of
assets, in a single transaction or series of related transactions, for
consideration in excess of $10,000,000, (b) an acquisition of assets, in a
single transaction or series of related transactions, for consideration in
excess of $20,000,000, and (c) the grant of a Lien with respect to assets, in a
single transaction or series of related transactions, in connection with
Indebtedness aggregating an amount in excess of $20,000,000. Simultaneously
with delivery of any such notice, Borrower shall be deemed to have represented
and warranted to the Administrative Agent that Borrower is in compliance with
this Agreement and the other Loan Documents both on a historical basis and on a
pro forma basis, exclusive of the property sold, transferred and/or encumbered
and inclusive of the property to be acquired or the indebtedness to be incurred.
To the extent such proposed transaction would result in a failure to comply with
the financial covenants set forth herein, proceeds of such transaction (together
with such additional amounts as may be required), in an amount, as determined by
the Administrative Agent, equal to that which would be required to reduce the
Obligations so that Borrower will be in compliance with the covenants set forth
herein upon the consummation of the contemplated transaction, shall be applied
to prepay the Obligations.
(c) Borrower shall promptly notify the Administrative Agent upon obtaining
knowledge of the bankruptcy or cessation of substantially all of the operations
63
of any tenant to which greater than two percent (2%) of Borrower's share of
consolidated minimum rent is attributable.
(d) promptly and in any event within ten days of Borrower or any Subsidiary
learning of any of the following, written notice to the Administrative Agent of
any of the following:
(i) the Release of any Hazardous Material on or from any
property owned or leased by Borrower of any of its Subsidiaries or
Eligible Minority Holdings and any written order, notice, permit,
application or other written communication or report received by
Borrower, any of its Subsidiaries or Eligible Minority Holdings in
connection with or relating to any such Release, unless such Release
is not reasonably likely to subject Borrower or any of its
Subsidiaries to Environmental Liabilities and Costs which would have a
Material Adverse Effect;
(ii) any notice or claim to the effect that Borrower, any of its
Subsidiaries or any Eligible Minority Holdings is or may be liable to
any Person as a result of the Release or threatened Release of any
Hazardous Material into the environment which liability would have a
Material Adverse Effect;
(iii) receipt by Borrower, any of its Subsidiaries or Eligible
Minority Holdings or any Operator of notification that any real or
personal property of Borrower or any of its Subsidiaries is subject to
an Environmental Lien;
(iv) any Remedial Action taken by Borrower or any of its
Subsidiaries or Eligible Minority Holdings or any other Person on
their behalf in response to any Hazardous Material on, under or about
any Real Property owned or leased by Borrower or any of its
Subsidiaries or Eligible Minority Holdings, unless such Remedial
Action is not reasonably likely to subject Borrower or any of its
Subsidiaries or Eligible Minority Holdings to Environmental
Liabilities and Costs which would have a Material Adverse Effect;
(v) receipt by Borrower or any of its Subsidiaries or Eligible
Minority Holdings of any notice of violation of, or knowledge by
Borrower or any of its Subsidiaries or any Eligible Minority Holdings
that there exists a condition which may result in a violation by
Borrower or any of its Subsidiaries or Eligible Minority Holdings of,
any Environmental Law, unless such violation is not reasonably likely
to subject Borrower or any of its Subsidiaries to Environmental
Liabilities and Costs which would have a Material Adverse Effect;
64
(vi) any proposed Capital Expenditure by Borrower or any of its
Subsidiaries or Eligible Minority Holdings intended or designed to
implement any existing or additional Remedial Action, unless such
expenditures are not reasonably likely to have a Material Adverse
Effect;
(vii) the commencement of any judicial or administrative
proceeding or investigation alleging a violation of any Environmental
Law; or
(viii) any proposed acquisition of stock, assets or Real Property,
or any proposed leasing of property by Borrower, or any of its
Subsidiaries or Eligible Minority Holdings, unless such action is not
reasonably likely to subject Borrower and its Subsidiaries to
Environmental Liabilities and Costs to Borrower which would have a
Material Adverse Effect; and
(e) promptly, such additional financial and other information respecting
the financial or other condition of Borrower or any of its Subsidiaries or
Eligible Minority Holdings or the status or condition of any Real Property owned
or leased by Borrower or its Subsidiaries or Eligible Minority Holdings, or the
operation thereof which Borrower is entitled to or can otherwise reasonably
obtain, as the Administrative Agent from time to time reasonably requests; and
(f) upon written request by any Lender through the Administrative Agent, a
report providing an update of the status of any Environmental Claim, Remedial
Action or any other issue identified in any notice or report required pursuant
to this Section 5.02
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of Borrower setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
SECTION 5.03. Existence; Conduct of Business. Borrower will, and
------------------------------
will cause each of its Subsidiaries to, do or cause to be done all things
necessary to preserve, renew and keep in full force and effect its legal
existence and the rights, licenses, permits, privileges and franchises material
to the conduct of its business.
SECTION 5.04. Payment of Obligations. Borrower will, and will cause
----------------------
each of its Subsidiaries to, pay its obligations, including Tax liabilities,
that, if not paid, could result in a Material Adverse Effect before the same
shall become delinquent or in default, except where (a) the validity or amount
thereof is being contested in good faith by appropriate proceedings, (b)
Borrower or such Subsidiary has set aside on its books adequate reserves with
respect thereto in accordance with GAAP and (c) the failure to make payment
pending such contest could not reasonably be expected to result in a Material
Adverse Effect.
65
SECTION 5.05. Maintenance of Properties; Insurance. Borrower will,
------------------------------------
and will cause each of its Subsidiaries to, (a) keep and maintain all property
material to the conduct of its business in good working order and condition,
ordinary wear and tear excepted, and (b) maintain, with financially sound and
reputable insurance companies, insurance in such amounts and against such risks
as are listed on Schedule 3.12 or substantially similar policies and programs as
are acceptable to the Administrative Agent. Notwithstanding the foregoing (i)
Borrower will, on or before January 15, 1998, deliver to the Administrative
Agent evidence satisfactory to the Administrative Agent that the earthquake
insurance coverage listed on Schedule 3.12 has been increased by at least $20
million, and (ii) the Administrative Agent shall be entitled to review, on an
annual basis, the earthquake insurance coverage maintained by Borrower and its
Subsidiaries and the probable maximum loss values in connection therewith, and
to require such additional insurance coverage as the Administrative Agent shall
determine, in its reasonable discretion, is required based on such review.
SECTION 5.06. Books and Records; Inspection Rights. Borrower will,
------------------------------------
and will cause each of its Subsidiaries to, keep proper books of record and
account in which full, true and correct entries are made of all dealings and
transactions in relation to its business and activities. Borrower will, and
will cause each of its Subsidiaries to, permit any representatives designated by
the Administrative Agent or any Lender, unless an Event of Default has occurred
and is continuing, at the expense of any such Lender, upon reasonable prior
notice and during normal business hours, to visit and inspect its properties, to
examine and make extracts from its books and records, and to discuss its
affairs, finances and condition with its officers and independent accountants,
all at such reasonable times and as often as reasonably requested.
SECTION 5.07. Compliance with Laws. Borrower will, and will cause
--------------------
each of its Subsidiaries to, comply with all laws, rules, regulations and orders
of any Governmental Authority applicable to it or its property, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 5.08. Use of Proceeds and Letters of Credit. No part of the
-------------------------------------
proceeds of any Loan will be used, whether directly or indirectly, for any
purpose that entails a violation of any of the Regulations of the Board,
including Regulations G, U and X. Letters of Credit will be issued only to
support performance obligations or escrow deposits or as additional support for
other operating purposes and partial credit enhancements for Indebtedness. The
proceeds of the Loans, will be used only for the purposes of:
(a) acquisition of retail Projects similar to and consistent with the
types of Projects owned and/or operated by Borrower on the Closing Date, located
in the following states: Washington, California, Oregon, Arizona, Nevada, Utah
or Idaho; and
(b) refinancing of existing Indebtedness for borrowed money secured by
Projects;
66
(c) redevelopment of Projects; and
(d) general corporate purposes of Borrower and its Subsidiaries;
provided that no more than 10% of the Available Credit shall be used for such
-------------
purpose at any time.
SECTION 5.09. Company Status. The Company shall at all times (1)
--------------
remain a publicly traded company listed on the American Stock Exchange; (2)
retain direct or indirect management and control of Borrower, and (3) operate
its business at all times so as to satisfy all requirements necessary to qualify
as an equity-oriented REIT under the Code. The Company will maintain adequate
records so as to comply with all record-keeping requirements relating to the
qualification of the Company as an equity-oriented REIT as required by the Code
and applicable regulations of the Department of the Treasury promulgated
thereunder and will properly prepare and timely file with the IRS all returns
and reports required thereby. The Company will request from its shareholders
all shareholder information required by the Code and applicable regulations of
the Department of Treasury promulgated thereunder.
SECTION 5.10. Ownership of Projects, Minority Holdings and Property.
-----------------------------------------------------
The ownership of substantially all wholly owned Projects, Minority Holdings and
other Property of the Consolidated Businesses shall be held by Borrower and its
Subsidiaries and shall not be held directly by the Company.
SECTION 5.11. Intentionally Deleted.
---------------------
SECTION 5.12. Environmental Matters. (a) Borrower shall comply and
---------------------
shall cause each of its Subsidiaries and Eligible Minority Holdings and each
property owned or leased by such parties to comply in all material respects with
all applicable Environmental Laws currently or hereafter in effect.
(b) If Administrative Agent or Lenders at any time have a reasonable
basis to believe that there may be a material violation of any Environmental Law
by Borrower or any of its Subsidiaries and Eligible Minority Holdings related to
any Real Property owned or leased by Borrower or any of its Subsidiaries and
Eligible Minority Holdings, or Real Property adjacent to such Real Property,
then Borrower agrees, upon request from the Administrative Agent, to provide the
Administrative Agent, at Borrower's expense, with such reports, certificates,
engineering studies or other written material or data as the Administrative
Agent or Lenders may reasonably require so as to reasonably satisfy the
Administrative Agent and Lenders that Borrower or such Subsidiary, Eligible
Minority Holding or Real Property owned or leased by them is in material
compliance with all applicable Environmental Laws. Furthermore, Administrative
Agent shall have the right to inspect during normal business hours any Real
Property owned or leased by Borrower or any of its Subsidiaries or Eligible
Minority Holdings if at any time Administrative Agent or Lenders have a
reasonable basis to believe that there may be such a material violation of
Environmental Law.
67
(c) Borrower shall, and shall cause each of its Subsidiaries and
Eligible Minority Holdings to, take such Remedial Action or other action as
required by Environmental Laws, as any Governmental Authority requires, except
to the extent contested in good faith and by proper proceedings, or as is
appropriate and consistent with good business practice.
SECTION 5.13. Borrowing Base Determination/ Requirements. (a) As of
------------------------------------------
the Effective Date, the Administrative Agent and the Lenders have accepted the
Projects listed on Schedule 5.13 as Eligible Projects for the purposes of the
-------- ----
Borrowing Base as of the Effective Date, provided that the parties acknowledge
-------- ----
and agree that:
(i) Borrower owns only a ground leasehold interest in the Media City
Center Project, but the Administrative Agent and the Lenders have agreed, as a
one time waiver only, to accept such Project as an Eligible Project. After the
sale or refinancing of any one portion of Borrower's interest in the Media City
Center Project (other than the MCC Tax Notes), the Borrowing Base will reduce to
50% of the Aggregate Value of the Mortgaged Properties at such time. After the
sale of more than one portion of Borrower's interest in the Media City Center
Project (other than the MCC Tax Notes), the Borrowing Base will reduce to 40% of
the Aggregate Value of the Mortgaged Properties at such time;
(ii) the Montebello Project has a PML of more than 20% of the
replacement cost thereof, but the Administrative Agent and the Lenders have
agreed, as a one time waiver only, to accept such Project as an Eligible
Project; and
(iii) with respect to the ▇▇▇▇ Center, Pacific Linen, Vancouver Park
and Frontier Village Projects, the portion of the Borrowing Base relating to
such Projects shall at all times be the sum of 50% of the Aggregate Value of the
▇▇▇▇ Center, Pacific Linen, Vancouver Park and Frontier Village Projects.
(b) If Borrower desires that the Administrative Agent and the
Approving Lenders accept an additional Project as an Eligible Project for the
purposes of the Borrowing Base, Borrower shall so notify the Administrative
Agent, in writing and deliver to the Administrative Agent, a duly executed and
completed due diligence request form in the form attached as Exhibit I hereto.
---------
In lieu of the Administrative Agent ordering the environmental reports and
building condition survey as contemplated by such form, the Administrative Agent
will accept environmental reports and building condition surveys prepared by
consultants approved by the Administrative Agent (a list of initially approved
environmental consultants and initially approved building condition consultants
is attached hereto as Exhibit J) provided such reports or surveys comply with
--------- --------
the Administrative Agent's requirements as to scope of work as set forth on
Exhibit K hereto and the Administrative Agent receives the original reliance
letters, (in the form attached as Exhibit L hereto or otherwise in form and
---------
substance reasonably acceptable to the Administrative Agent) in favor of the
Administrative Agent, the Lenders and their respective successors and assigns,
and holders of any participation interests in the Loan. The acceptance of such
Project in the Borrowing Base shall be subject to the approval of the
Administrative Agent and the Approving Lenders, which approval shall not be
68
unreasonably withheld, conditioned or delayed, provided such Project shall meet
--------
the requirements for Eligible Projects specified herein and provided further
-------- -------
that a Project shall not be accepted as an Eligible Project unless and until
----
Borrower has delivered to the Administrative Agent, (i) Mortgage Documents in
respect of such Project including, without limitation, the payments specified in
clause (g) of the definition of Mortgage Documents, and (ii) the Eligible
Project Documents relating to such Project in form and substance reasonably
satisfactory to the Administrative Agent and the Approving Lenders. The
Administrative Agent shall notify Borrower of the Administrative Agent's and the
Approving Lenders' acceptance or rejection of such Project as an Eligible
Project within ten (10) Business Days after the Administrative Agent receives
the written request from Borrower for such Project to be accepted as an Eligible
Project for the purpose of the Borrowing Base, provided that Borrower has
-------------
complied with the terms and provisions of this Section 5.13(b).
(c) Borrower shall promptly notify the Administrative Agent in writing in
the event that at any time Borrower or any of its Subsidiaries receives or
otherwise gains knowledge that (i) any Project included in a prior Borrowing
Base Certificate as an Eligible Project, ceases, for any reason whatsoever, to
be an Eligible Project, or (ii) that the Aggregate Value of the Eligible Project
is less than 90% of the Aggregate Value for such Eligible Project reflected in
the most recent Borrowing Base Certificate delivered pursuant hereto, or (iii)
the Loans and LC Exposure, outstanding at such time exceed the lower of the then
effective Commitments or the Borrowing Base at such time as a result of any
decrease in the Borrowing Base, and the amount of such excess. In the event of
a Borrowing Base Imbalance, Borrower shall prepay the Loans or a portion thereof
as required pursuant to Section 2.11(d).
(d) The Administrative Agent, at the expense of the Lenders (but such
expense to be reimbursed by Borrower in the event that a Project fails to meet
requirements for an Eligible Project in any material respect) may make physical
and other verifications of any Projects included as Eligible Projects in any
reasonable manner and through any medium that the Administrative Agent considers
advisable, and Borrower shall furnish all such assistance and information as the
Administrative Agent may require in connection therewith.
(e) At any time there shall be not less than six (6) Mortgaged Properties
included in the Collateral.
(f) The Administrative Agent shall have the right, at the expense of
Borrower, to require reappraisals of the Mortgaged Properties if the same are
required pursuant to a Requirement of Law, provided that no more than one
-------- ----
reappraisal shall be required in any twelve (12) month period.
(g) Notwithstanding anything to the contrary set forth herein, a Project
shall cease to be an Eligible Project if it shall cease to comply with the
requirements therefor set forth herein.
69
SECTION 5.14. Equity Infusion Requirement. Borrower shall cause the
---------------------------
Company to comply with its obligations set forth in Section 4 of the Security
Agreement.
ARTICLE VI
Negative Covenants
------------------
Until the Commitments have expired or terminated and the principal of
and interest on each Loan and all fees payable hereunder have been paid in full
and all Letters of Credit have expired or terminated and all LC Disbursements
shall have been reimbursed, Borrower covenants and agrees with the Lenders that:
SECTION 6.01. Indebtedness and Other Financial Covenants.
------------------------------------------
(a) From and After the Effective Date:
---------------------------------
(i) Limitations on Indebtedness. Neither Borrower nor any of
---------------------------
its Subsidiaries shall directly or indirectly create, incur, assume or
otherwise become or remain directly or indirectly liable with respect
to any Indebtedness, except Indebtedness which, when aggregated with
Indebtedness of Borrower or any of its Subsidiaries and Minority
Holdings Indebtedness allocable in accordance with GAAP to Borrower or
any Subsidiary of Borrower, would not exceed, at any time, seventy-
five percent (75%) of Total Value ("Total Outstanding Indebtedness
------------------------------
Limitation"). In addition, except in its capacity as the General
----------
Partner, the Company shall not incur, directly or indirectly, any
Indebtedness other than the Guaranty.
(ii) Minimum Facility Interest Coverage Ratio. As of the
----------------------------------------
first day of each calendar quarter for the immediately preceding
calendar quarter, the ratio of (y) the aggregate sum of Adjusted NOI
from the Mortgaged Properties, to (z) Facility Interest Expense for
such quarter shall not be less than 2.00 to 1.00.
(iii) Minimum Fixed Charge Coverage Ratio. As of the first day
-----------------------------------
of each calendar quarter for the immediately preceding calendar
quarter, the ratio of (A) Total Adjusted EBITDA, to (B) Fixed Charges
shall not be less than 1.50 to 1.00.
(iv) Restrictions on Stock Buyback. The Company shall not,
-----------------------------
without the prior written consent of the Required Lenders, make any
payment on account of the purchase, redemption, retirement or
acquisition of (1) any shares of the Company's capital stock, or (2)
any option, warrant or other right to acquire shares of the Company's
capital stock; provided that the purchase, redemption, retirement or
acquisition of (1) or (2) shall be permitted without the prior written
consent of the Required
70
Lenders if (A) from management leaving the Company and (B) not in
excess of $1,000,000.00 in any calendar year.
(b) Negative Pledge. From and after the date hereof, neither
---------------
Borrower nor the Company will, and will not permit any Subsidiary, to enter into
any agreement containing any provision prohibiting the creation or assumption of
any Lien upon any Eligible Projects, or restricting the ability of Borrower to
amend or modify this Agreement or any other Loan Document.
(c) Pro Forma Calculations. Borrower shall comply with the
----------------------
financial ratios set forth in this Section 6.01 as of the date of each
Borrowing. Borrower shall recalculate the financial ratios by adding the deemed
amount equal to the Borrowing to the Indebtedness reflected on the most recently
available financial statements, and adding thereto any Indebtedness incurred
since the date of such financial statement and adding thereto the value of such
assets (determined at cost) acquired with such Indebtedness to Total Value.
Borrower shall deliver a Compliance Certificate, signed by Borrower representing
and certifying that the pro forma calculations as of the date of the draw
---------
demonstrate Borrower's compliance with the covenants and financial ratios set
forth in this Section 6.01.
SECTION 6.02. Liens. Borrower will not, and will not permit any
-----
Subsidiary to, create, incur, assume or permit to exist any Lien on any property
or asset now owned or hereafter acquired by it, or assign or sell any income or
revenues (including accounts receivable) or rights in respect of any thereof,
except:
(a) Permitted Encumbrances;
(b) Liens with respect to Capital Leases of Equipment entered
into in the ordinary course of business of Borrower pursuant to which
the aggregate Indebtedness under such Capital Leases does not exceed
$5,000,000 for any Project; and
(c) Liens securing Secured Indebtedness comprising, as of the
date hereof, the Liens securing the Secured Indebtedness set forth on
Schedule 3.04, subject to the limitations in Section 6.01(b).
-------------
SECTION 6.03. Fundamental Changes. (a) Borrower will not, and will
-------------------
not permit any Subsidiary to, merge into or consolidate with any other Person,
or permit any other Person to merge into or consolidate with it, or sell,
transfer, lease or otherwise dispose of (in one transaction or in a series of
transactions) all or substantially all of its assets (in each case, whether now
owned or hereafter acquired), or liquidate or dissolve, except (i) in connection
with the issuance transfer, conversion or repurchase of limited partnership
interests in Borrower, and (ii) if at the time thereof and immediately after
giving effect thereto no Default shall have occurred and be continuing (x) any
Person may merge into Borrower in a transaction in which Borrower is the
surviving corporation and (y) any Person may merge into any Subsidiary in a
transaction in which the surviving corporation is a Subsidiary.
71
(b) Borrower will not, and will not permit any of its Subsidiaries
to, engage to any material extent in any business other than businesses of the
type conducted by Borrower and its Subsidiaries on the date of execution of this
Agreement and businesses reasonably related thereto.
SECTION 6.04. Investments, Loans, Advances, Guarantees and
--------------------------------------------
Acquisitions. Borrower will not, and will not permit any of its Subsidiaries
------------
to, purchase, hold or acquire (including pursuant to any merger with any Person
that was not a wholly owned Subsidiary prior to such merger) any capital stock,
evidences of indebtedness or other securities (including any option, warrant or
other right to acquire any of the foregoing) of, make or permit to exist any
loans or advances to, Guarantee any obligations of, or make or permit to exist
any investment or any other interest in, any other Person, or purchase or
otherwise acquire (in one transaction or a series of transactions) any assets of
any other Person constituting a business unit, except:
(a) Permitted Investments;
(b) Investments in Real Property; provided that (i) the aggregate
-------- ----
Investments by Borrower and its consolidated Subsidiaries in unimproved Real
Property and Properties under construction shall not exceed 10% of Total Value,
and (ii) Projects that are not located in the States of Washington, California,
Oregon, Arizona, Nevada, Utah or Idaho, shall not exceed 10% of Total Value;
(c) Investments including loans) in Borrower's Subsidiaries;
provided that Borrower shall not create or acquire any direct or indirect
wholly-owned Subsidiary which owns any Project that is Unencumbered after the
Effective Date unless, concurrently with the creation or acquisition thereof,
such Subsidiary executes and delivers to the Administrative Agent a Subsidiary
Guaranty;
(d) Investments in Minority Holdings; provided that the aggregate
-------- ----
Investments of the type set forth in this clause (d) shall not exceed 20% of
Total Value;
(e) Investments in notes secured by mortgages on any Real Property
of any Person; provided that the aggregate Investments of the type set forth in
-------- ----
this clause (e) shall not exceed 10% of Total Value; and
(f) additional Investments in an amount outstanding at any time not
to exceed $10,000,000.
SECTION 6.05. Hedging Agreements. Borrower will not, and will not
------------------
permit any of its Subsidiaries to, enter into any Hedging Agreement, other than
Hedging Agreements entered into in the ordinary course of business to hedge or
mitigate risks to which Borrower or any Subsidiary is exposed in the conduct of
its business or the management of its liabilities.
SECTION 6.06. Transactions with Affiliates. Neither Borrower nor any
----------------------------
of its Subsidiaries shall directly or indirectly enter into or permit to exist
any transaction (including, without limitation, the purchase, sale, lease or
exchange of any
72
property or the rendering of any service) with any holder or holders of more
than five percent (5%) of any class of equity Securities of Borrower, or with
any Affiliate of Borrower which is not its Subsidiary, on terms less favorable
to Borrower or any of its Subsidiaries, as applicable, than those that might be
obtained in an arm's length transaction at the time from Persons who are not
such a holder or Affiliate. Nothing contained in this Section 6.06 shall
prohibit (a) increases in compensation and benefits for officers and employees
of Borrower or any of its Subsidiaries which are customary in the industry or
consistent with the past business practice of Borrower or such Subsidiary,
provided that no Event of Default or Default has occurred and is continuing; (b)
-------- ----
payment of customary partners' indemnities; or (c) performance of any
obligations arising under the Loan Documents or (d) the performance by the
Company and Borrower of their obligations under the Lazard Agreements.
SECTION 6.07. Intentionally Deleted.
---------------------
SECTION 6.08. Margin Regulations; Securities Laws. Neither Borrower
-----------------------------------
nor any of its Subsidiaries, shall use all or any portion of the proceeds of any
credit extended under this Agreement to purchase or carry Margin Stock.
SECTION 6.09. Negative Covenants of the Company.
---------------------------------
(a) The Company will not acquire any assets of any nature
whatsoever, other than additional units in Borrower.
(b) From and after the date hereof, the Company will not incur any
Indebtedness or any other obligations or liabilities except (x) in its capacity
as the general partner of Borrower in connection with transactions entered into
in the ordinary course of business, and (y) Indebtedness, the net proceeds of
which are contributed to Borrower simultaneously with the incurrence thereof by
the Company.
(c) From and after the date hereof, the Company will not retain any
Net Offering Proceeds, and the same will be contributed by the Company to
Borrower simultaneously with receipt thereof by the Company.
(d) The Company shall not enter into any merger or consolidation, or
liquidate, wind-up or dissolve (or suffer any liquidation or dissolution), or
convey, lease, sell, transfer or otherwise dispose of, in one transaction or
series of transactions, any of its business or assets, including its interests
in Borrower. Notwithstanding the foregoing, the Company shall be permitted to
merge with another Person so long as the Company is the surviving Person
following such merger.
SECTION 6.10. Environmental Matters. (a) Borrower shall not, and
---------------------
shall not permit any of its Subsidiaries or Eligible Minority Holdings or, to
the extent reasonably practicable, any other Person to dispose of any Hazardous
Material in violation of any Environmental Laws by placing it in or on the
ground or waters of any property owned or leased by Borrower or any of its
Subsidiaries or Eligible Minority Holdings.
73
(b) Borrower shall not, and shall not permit any of its Subsidiaries
or Eligible Minority Holdings, or, to the extent practicable, authorize any
other Person to, dispose or to arrange for the disposal of any Hazardous
Material on behalf of Borrower or any of its Subsidiaries or Eligible Minority
Holdings except in material compliance with all applicable Environmental Laws
currently and hereinafter in effect.
ARTICLE VII
Events of Default
-----------------
If any of the following events ("Events of Default") shall occur:
-----------------
(a) Borrower shall fail to pay any principal of any Loan or any
reimbursement obligation in respect of any LC Disbursement when and as
the same shall become due and payable, whether at the due date thereof
or at a date fixed for prepayment thereof or otherwise;
(b) Borrower shall fail to pay any interest on any Loan or any
fee or any other amount (other than an amount referred to in clause
(a) of this Article) payable under this Agreement or any other Loan
Document, when and as the same shall become due and payable, and such
failure shall continue unremedied for a period of three Business Days;
(c) any representation or warranty made or deemed made by or on
behalf of Borrower or any Subsidiary in or in connection with this
Agreement or any other Loan Document or any amendment or modification
hereof or thereof or waiver hereunder or thereunder, or in any report,
certificate, financial statement or other document furnished pursuant
to or in connection with this Agreement or any amendment or
modification hereof or waiver hereunder, shall prove to have been
incorrect in any material respect when made or deemed made;
(d) Borrower shall fail to observe or perform any covenant,
condition or agreement contained in Article VI;
(e) Borrower shall fail to observe or perform any covenant,
condition or agreement contained in this Agreement or any other Loan
Document (other than those specified in clause (a), (b) or (d) of this
Article), and such failure shall continue unremedied for a period of
30 days after written notice thereof from the Administrative Agent to
Borrower (which notice will be given at the request of any Lender);
(f) Borrower or any Subsidiary shall fail to make any payment
(whether of principal or interest and regardless of amount) and such
failure shall continue beyond any applicable grace period in respect
of any Material Indebtedness, when and as the same shall become due
and payable;
74
(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that
enables or permits the holder or holders of any Material Indebtedness
or any trustee or agent on its or their behalf to cause any Material
Indebtedness to become due, or to require the prepayment, repurchase,
redemption or defeasance thereof, prior to its scheduled maturity;
provided that this clause (g) shall not apply to secured Indebtedness
-------- ----
that becomes due as a result of the voluntary sale or transfer of the
property or assets securing such Indebtedness unless prohibited by
this Agreement;
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or
other relief in respect of the Company, Borrower or any Subsidiary or
its debts, or of a substantial part of its assets, under any Federal,
state or foreign bankruptcy, insolvency, receivership or similar law
now or hereafter in effect or (ii) the appointment of a receiver,
trustee, custodian, sequestrator, conservator or similar official for
the Company, Borrower or any Subsidiary or for a substantial part of
its assets, and, in any such case, such proceeding or petition shall
continue undismissed for 60 days or an order or decree approving or
ordering any of the foregoing shall be entered;
(i) the Company, Borrower or any Subsidiary shall (i) voluntarily
commence any proceeding or file any petition seeking liquidation,
reorganization or other relief under any Federal, state or foreign
bankruptcy, insolvency, receivership or similar law now or hereafter
in effect, (ii) consent to the institution of, or fail to contest in a
timely and appropriate manner, any proceeding or petition described in
clause (h) of this Article, (iii) apply for or consent to the
appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Company, Borrower or any
Subsidiary or for a substantial part of its assets, (iv) file an
answer admitting the material allegations of a petition filed against
it in any such proceeding, (v) make a general assignment for the
benefit of creditors or (vi) take any action for the purpose of
effecting any of the foregoing;
(j) the Company, Borrower or any Subsidiary shall become unable,
admit in writing or fail generally to pay its debts as they become
due;
(k) one or more judgments for the payment of money in an aggregate
amount in excess of $10,000,000 shall be rendered against Borrower,
any Subsidiary or any combination thereof and, except to the extent
payment of the same shall be covered by insurance, the same shall
remain undischarged for a period of 30 consecutive days during which
execution shall not be effectively stayed, or any action shall be
legally
75
taken by a judgment creditor to attach or levy upon any assets of
Borrower or any Subsidiary to enforce any such judgment;
(l) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other ERISA Events that
have occurred, could reasonably be expected to result in a Material
Adverse Effect;
(m) a Change in Control shall occur;
(n) an event shall occur which has a Material Adverse Effect;
(o) the Company shall fail to (i) maintain its status as a REIT for
federal income tax purposes, (ii) continue as a general partner of
Borrower, (iii) comply with all Requirements of Law applicable to it
and its businesses and Properties, in each case where the failure to
so comply individually or in the aggregate will have or is reasonably
likely to have a Material Adverse Effect, (iv) remain listed on the
American Stock Exchange, or (v) file all tax returns and reports
required to be filed by it with any Governmental Authority as and when
required to be filed or to pay any taxes, assessments, fees or other
governmental charges upon it or its Property, assets, receipts, sales,
use, payroll, employment, licenses, income, or franchises which are
shown in such returns, reports or similar statements to be due and
payable as and when due and payable, except for taxes, assessments,
fees and other governmental charges (A) that are being contested by
the Company in good faith by an appropriate proceeding diligently
pursued, (B) for which adequate reserves have been made on its books
and records, and (C) the amounts the non-payment of which would not,
individually or in the aggregate, result in a Material Adverse Effect
and such failure under this clause (v), to the extent curable, shall
remain uncured for a period of thirty (30) days after notice thereof
from the Administrative Agent to Borrower;
(p) the Company shall merge or liquidate with or into any other
Person and, as a result thereof and after giving effect thereto, (i)
the Company is not the surviving Person or (ii) such merger or
liquidation would effect an acquisition of or Investment in any Person
not otherwise permitted under the terms of this Agreement;
(q) Borrower or any of its Subsidiaries shall have entered into any
consent or settlement decree or agreement or similar arrangement with
an Governmental Authority or any judgment, order, decree or similar
action shall have been entered against Borrower or any of its
Subsidiaries, in each case based on or arising from the violation of
or pursuant to any Environmental Law, or the generation, storage,
transportation, treatment, disposal or Release of any Hazardous
Material and, in connection with all the foregoing, Borrower and its
Subsidiaries are likely to incur
76
Environmental Liabilities and Costs which would have a Material
Adverse Effect; or
(r) the Equity Infusion shall not have occurred by the outside
dates provided in Section 4 of the Security Agreement;
then, and in every such event (other than an event with respect to Borrower
described in clause (h) or (i) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to Borrower, take either or
both of the following actions, at the same or different times: (i) terminate
the Commitments, and thereupon the Commitments shall terminate immediately, and
(ii) declare the Loans then outstanding to be due and payable in whole (or in
part, in which case any principal not so declared to be due and payable may
thereafter be declared to be due and payable), and thereupon the principal of
the Loans so declared to be due and payable, together with accrued interest
thereon and all fees and other obligations of Borrower accrued hereunder, shall
become due and payable immediately, without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by Borrower; and in
case of any event with respect to Borrower described in clause (h) or (i) of
this Article, the Commitments shall automatically terminate and the principal of
the Loans then outstanding, together with accrued interest thereon and all fees
and other obligations of Borrower accrued hereunder, shall automatically become
due and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by Borrower. In addition to the remedies
set forth above, the Administrative Agent may exercise any remedies provided for
in the Collateral Documents, if any, or by applicable law.
ARTICLE VIII
The Administrative Agent
------------------------
Each of the Lenders and the Issuing Bank hereby irrevocably appoints
the Administrative Agent as its agent and authorizes the Administrative Agent to
take such actions on its behalf and to exercise such powers as are delegated to
the Administrative Agent by the terms hereof, together with such actions and
powers as are reasonably incidental thereto.
The bank serving as the Administrative Agent hereunder shall have the
same rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent, and such bank
and its Affiliates may accept deposits from, lend money to and generally engage
in any kind of business with Borrower or any Subsidiary or other Affiliate
thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations
except those expressly set forth herein. Without limiting the generality of the
foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or
other implied duties, regardless of whether a Default has occurred and is
continuing, (b) the Administrative
77
Agent shall not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly
contemplated hereby that the Administrative Agent is required to exercise in
writing by the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary under the circumstances as provided in Section
9.02), and (c) except as expressly set forth herein, the Administrative Agent
shall not have any duty to disclose, and shall not be liable for the failure to
disclose, any information relating to Borrower or any of its Subsidiaries that
is communicated to or obtained by the bank serving as Administrative Agent or
any of its Affiliates in any capacity. The Administrative Agent shall not be
liable for any action taken or not taken by it with the consent or at the
request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary under the circumstances as provided in Section
9.02) or in the absence of its own gross negligence or willful misconduct. The
Administrative Agent shall be deemed not to have knowledge of any Default unless
and until written notice thereof is given to the Administrative Agent by
Borrower or a Lender, and the Administrative Agent shall not be responsible for
or have any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with this Agreement, (ii) the contents
of any certificate, report or other document delivered hereunder or in
connection herewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth herein, (iv) the
validity, enforceability, effectiveness or genuineness of this Agreement or any
other agreement, instrument or document, or (v) the satisfaction of any
condition set forth in Article IV or elsewhere herein, other than to confirm
receipt of items expressly required to be delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed
by it to be made by the proper Person, and shall not incur any liability for
relying thereon. The Administrative Agent may consult with legal counsel (who
may be counsel for Borrower), independent accountants and other experts selected
by it, and shall not be liable for any action taken or not taken by it in
accordance with the advice of any such counsel, accountants or experts.
The Administrative Agent may perform any and all its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this paragraph, the Administrative Agent may
resign at any time by notifying the Lenders, the Issuing Bank and Borrower.
Upon any such resignation, the
78
Required Lenders shall have the right to appoint a successor provided that, if
-------- ----
an Event of Default is not continuing, such appointment shall be subject to the
consent of Borrower, such consent not to be unreasonably withheld, conditioned
or delayed. If no successor shall have been so appointed by the Required Lenders
and shall have accepted such appointment within 30 days after the retiring
Administrative Agent gives notice of its resignation, then the retiring
Administrative Agent may, on behalf of the Lenders and the Issuing Bank, appoint
a successor Administrative Agent which shall be a bank with an office in New
York, New York, or an Affiliate of any such bank. Upon the acceptance of its
appointment as Administrative Agent hereunder by a successor, such successor
shall succeed to and become vested with all the rights, powers, privileges and
duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations hereunder. The fees
payable by Borrower to a successor Administrative Agent shall be the same as
those payable to its predecessor unless otherwise agreed between Borrower and
such successor. After the Administrative Agent's resignation hereunder, the
provisions of this Article and Section 9.03 shall continue in effect for the
benefit of such retiring Administrative Agent, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be
taken by any of them while it was acting as Administrative Agent.
Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any related agreement or any document furnished hereunder or thereunder.
ARTICLE IX
Miscellaneous
-------------
SECTION 9.01. Notices. Except in the case of notices and other
-------
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) If to Borrower, to CT Operating Partnership, L.P., ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq. (Telecopy No. 310-546-3396), with a copy to
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq. (Telecopy No. 213-
891-8763);
(b) if to the Administrative Agent, to The Chase Manhattan Bank,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇
79
Mix (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇), with a copy to the Legal
Department, The Chase Manhattan Bank, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention of ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq. (Telecopy No. 212-270-2873), with a
copy to Weil, Gotshal & ▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Attention of J. ▇▇▇▇▇▇ ▇▇▇▇▇, Esq. (Telecopy No. 212-310-
8007);
(c) if to the Issuing Bank, to it at The Chase Manhattan Bank, ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ 10041, Attention of
Standing Letter of Credit Department (Telecopy No. 212-638-8200); and
(d) if to any other Lender, to it at its address (or telecopy
number) set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 9.02. Waivers; Amendments. (a) No failure or delay by the
-------------------
Administrative Agent, the Issuing Bank or any Lender in exercising any right or
power hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The
rights and remedies of the Administrative Agent, the Issuing Bank and the
Lenders hereunder are cumulative and are not exclusive of any rights or remedies
that they would otherwise have. No waiver of any provision of this Agreement or
consent to any departure by Borrower therefrom shall in any event be effective
unless the same shall be permitted by paragraph (b) of this Section, and then
such waiver or consent shall be effective only in the specific instance and for
the purpose for which given. Without limiting the generality of the foregoing,
the making of a Loan or issuance of a Letter of Credit shall not be construed as
a waiver of any Default, regardless of whether the Administrative Agent, any
Lender or the Issuing Bank may have had notice or knowledge of such Default at
the time.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by Borrower and the Required Lenders or by Borrower and the
Administrative Agent with the consent of the Required Lenders; provided that no
-------- ----
such agreement shall (i) increase the Commitment of any Lender without the
written consent of such Lender, (ii) reduce the principal amount of any Loan or
LC Exposure or reduce the rate of interest thereon, or reduce any fees payable
hereunder, without the written consent of each Lender affected thereby, (iii)
postpone the scheduled date of payment of the principal amount of any Loan or LC
Disbursement, or any interest thereon, or any fees payable hereunder, or reduce
the amount of, waive or excuse any such payment (other than interest under
Section 2.13(d)), or postpone the scheduled date of expiration of any
Commitment, without the written consent of each Lender affected thereby, (iv)
change
80
Section 2.18(b) or (c) in a manner that would alter the pro rata sharing of
payments required thereby, without the written consent of each Lender, (v)
change any of the provisions of this Section or the definition of "Required
Lenders" or any other provision hereof specifying the number or percentage of
Lenders required to waive, amend or modify any rights hereunder or make any
determination or grant any consent hereunder, without the written consent of
each Lender, (vi) change the definitions of Available Credit, Borrowing Base,
Eligible Project or Aggregate Value without the written consent of each Lender
(provided that the foregoing shall not include changes in any defined terms used
--------- ----
in such definitions), (vii) release Guarantor or, except as provided in Section
2.11(f) hereof, any Subsidiary Guarantor from its obligations under the Guaranty
or any Subsidiary Guaranty, as applicable, without the written consent of each
Lender, (viii) release any Mortgaged Property otherwise than in compliance with
Section 2.11(e) hereof without the written consent of each Lender, (ix) accept
an additional Project as an Eligible Project except in accordance with Section
5.13(b), or (x) amend this Section 9.02(b) without the written consent of each
Lender; provided further that no such agreement shall amend, modify or otherwise
-------- ------- ----
affect the rights or duties of the Administrative Agent or the Issuing Bank
hereunder without the prior written consent of the Administrative Agent or the
Issuing Bank, as the case may be.
SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) Borrower
----------------------------------
shall pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent and its Affiliates, including the reasonable fees, charges
and disbursements of counsel for the Administrative Agent, in connection with
the syndication of the credit facilities provided for herein, the preparation
and administration of this Agreement or any amendments, modifications or waivers
of the provisions hereof (whether or not the transactions contemplated hereby or
thereby shall be consummated), (ii) all reasonable out-of-pocket expenses
incurred by the Issuing Bank in connection with the issuance, amendment, renewal
or extension of any Letter of Credit or any demand for payment thereunder and
(iii) all reasonable out-of-pocket expenses incurred by the Administrative
Agent, the Issuing Bank or, if an Event of Default has occurred and is
continuing, any Lender, including the reasonable fees, charges and disbursements
of any counsel for the Administrative Agent, the Issuing Bank or any Lender, in
connection with the enforcement or protection of its rights in connection with
this Agreement, including its rights under this Section, or in connection with
the Loans made or Letters of Credit issued hereunder, including all such
reasonable out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans or Letters of Credit.
(b) Borrower shall indemnify the Administrative Agent, the Issuing
Bank and each Lender, and each Related Party of any of the foregoing Persons
(each such Person being called an "Indemnitee") against, and hold each
----------
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related reasonable expenses, including the reasonable fees, charges and
disbursements of any counsel for any Indemnitee, actually incurred by or
asserted against any Indemnitee arising out of, in connection with, or as a
result of (i) the execution or delivery of this Agreement or any agreement or
instrument contemplated hereby, the performance by the parties hereto of their
respective obligations hereunder or the consummation of the Transactions or any
other transactions
81
contemplated hereby, (ii) any Loan or Letter of Credit or the use of the
proceeds therefrom (including any refusal by the Issuing Bank to honor a demand
for payment under a Letter of Credit if the documents presented in connection
with such demand do not strictly comply with the terms of such Letter of
Credit), (iii) any misrepresentation or breach of warranty under Section 5.12 or
any Environmental Claim or any Environmental Lien or any Remedial Action arising
out of or based upon anything relating to Real Property owned or leased by
Borrower or any of its Subsidiaries; or (iv) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory and regardless of whether
any Indemnitee is a party thereto; provided that such indemnity shall not, as to
-------- ----
any Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses resulted from the gross negligence or willful
misconduct of such Indemnitee.
(c) To the extent that Borrower fails to pay any amount required to be paid
by it to the Administrative Agent or the Issuing Bank under paragraph (a) or (b)
of this Section, each Lender severally agrees to pay to the Administrative Agent
or the Issuing Bank, as the case may be, such Lender's Applicable Percentage
(determined as of the time that the applicable unreimbursed expense or indemnity
payment is sought) of such unpaid amount; provided that the unreimbursed expense
-------- ----
or indemnified loss, claim, damage, liability or related expense, as the case
may be, was incurred by or asserted against the Administrative Agent or the
Issuing Bank in its capacity as such.
(d) To the extent permitted by applicable law, Borrower shall not assert,
and hereby waives, any claim against any Indemnitee, on any theory of liability,
for special, indirect, consequential or punitive damages (as opposed to direct
or actual damages) arising out of, in connection with, or as a result of, this
Agreement or any agreement or instrument contemplated hereby, the Transactions,
any Loan or Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable not later than five
days after written demand therefor.
SECTION 9.04. Successors and Assigns. (a) The provisions of this
----------------------
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby (including any
Affiliate of the Issuing Bank that issues any Letter of Credit), except that
Borrower may not assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by Borrower without such consent shall be null and void).
Nothing in this Agreement, expressed or implied, shall be construed to confer
upon any Person (other than the parties hereto, their respective successors and
assigns permitted hereby (including any Affiliate of the Issuing Bank that
issues any Letter of Credit) and, to the extent expressly contemplated hereby,
the Related Parties of each of the Administrative Agent, the Issuing Bank and
the Lenders) any legal or equitable right, remedy or claim under or by reason of
this Agreement.
82
(b) Any Lender may assign to one or more assignees all or a portion of its
rights and obligations under this Agreement (including all or a portion of its
Commitment and the Loans at the time owing to it); provided that (i) except in
-------- ----
the case of an assignment to a Lender or an Affiliate of a Lender, the
Administrative Agent (and, in the case of an assignment of all or a portion of a
Commitment or any Lender's obligations in respect of its LC Exposure, the
Issuing Bank) and prior to the occurrence of an Event of Default, Borrower must
give their prior written consent to such assignment (which consent shall not be
unreasonably withheld), (ii) except in the case of an assignment to a Lender or
an Affiliate of a Lender or an assignment of the entire remaining amount of the
assigning Lender's Commitment, the amount of the Commitment of the assigning
Lender subject to each such assignment (determined as of the date the Assignment
and Acceptance with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $5,000,000 unless each of Borrower
and the Administrative Agent otherwise consent, (iii) each partial assignment
shall be made as an assignment of a proportionate part of all the assigning
Lender's rights and obligations under this Agreement, (iv) the parties to each
assignment shall execute and deliver to the Administrative Agent an Assignment
and Acceptance, together with a processing and recordation fee of $3,500, and
(v) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire; and provided further that
-------- ------- ----
any consent of Borrower otherwise required under this paragraph shall not be
required if an Event of Default under clause (h) or (i) of Article VII has
occurred and is continuing. Subject to acceptance and recording thereof
pursuant to paragraph (d) of this Section, from and after the effective date
specified in each Assignment and Acceptance the assignee thereunder shall be a
party hereto and, to the extent of the interest assigned by such Assignment and
Acceptance, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Acceptance, be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance covering
all of the assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.15, 2.16, 2.17 and 9.03). Any assignment or transfer by
a Lender of rights or obligations under this Agreement that does not comply with
this paragraph shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with
paragraph (e) of this Section.
(c) The Administrative Agent, acting for this purpose as an agent of
Borrower, shall maintain at one of its offices in The City of New York a copy of
each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans and LC Disbursements owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The entries in
--------
the Register shall be conclusive, and Borrower, the Administrative Agent, the
Issuing Bank and the Lenders may treat each Person whose name is recorded in the
Register pursuant to the terms hereof as a Lender hereunder for all purposes of
this Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by Borrower, the Issuing Bank and any Lender, at any
reasonable time and from time to time upon reasonable prior notice.
83
(d) Upon its receipt of a duly completed Assignment and Acceptance executed
by an assigning Lender and an assignee, the assignee's completed Administrative
Questionnaire (unless the assignee shall already be a Lender hereunder), the
processing and recordation fee referred to in paragraph (b) of this Section and
any written consent to such assignment required by paragraph (b) of this
Section, the Administrative Agent shall accept such Assignment and Acceptance
and record the information contained therein in the Register. No assignment
shall be effective for purposes of this Agreement unless it has been recorded in
the Register as provided in this paragraph.
(e) Any Lender may, without the consent of Borrower, the Administrative
Agent or the Issuing Bank, sell participations to one or more banks or other
entities (a "Participant") in all or a portion of such Lender's rights and
-----------
obligations under this Agreement (including all or a portion of its Commitment
and the Loans owing to it); provided that (i) such Lender's obligations under
-------- ----
this Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations
and (iii) Borrower, the Administrative Agent, the Issuing Bank and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement. Any
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision
of this Agreement; provided that such agreement or instrument may provide that
-------- ----
such Lender will not, without the consent of the Participant, agree to any
amendment, modification or waiver described in the first proviso to Section
9.02(b) that affects such Participant. Subject to paragraph (f) of this
Section, Borrower agrees that each Participant shall be entitled to the benefits
of Sections 2.15, 2.16 and 2.17 to the same extent as if it were a Lender and
had acquired its interest by assignment pursuant to paragraph (b) of this
Section. To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 9.08 as though it were a Lender, provided
such Participant agrees to be subject to Section 2.18(c) as though it were a
Lender.
(f) A Participant shall not be entitled to receive any greater payment
under Section 2.15 or 2.17 than the applicable Lender would have been entitled
to receive with respect to the participation sold to such Participant, unless
the sale of the participation to such Participant is made with Borrower's prior
written consent. A Participant that would be a Foreign Lender if it were a
Lender shall not be entitled to the benefits of Section 2.17 unless Borrower is
notified of the participation sold to such Participant and such Participant
agrees, for the benefit of Borrower, to comply with Section 2.17(e) as though it
were a Lender.
(g) Any Lender may at any time pledge or assign a security interest in all
or any portion of its rights under this Agreement to secure obligations of such
Lender, including any pledge or assignment to secure obligations to a Federal
Reserve Bank, and this Section shall not apply to any such pledge or assignment
of a security interest; provided that no such pledge or assignment of a security
-------- ----
interest shall release a Lender
84
from any of its obligations hereunder or substitute any such pledgee or assignee
for such Lender as a party hereto.
SECTION 9.05. Survival. All covenants, agreements, representations
--------
and warranties made by Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any Loans
and issuance of any Letters of Credit, regardless of any investigation made by
any such other party or on its behalf and notwithstanding that the
Administrative Agent, the Issuing Bank or any Lender may have had notice or
knowledge of any Default or incorrect representation or warranty at the time any
credit is extended hereunder, and shall continue in full force and effect as
long as the principal of or any accrued interest on any Loan or any fee or any
other amount payable under this Agreement is outstanding and unpaid or any
Letter of Credit is outstanding and so long as the Commitments have not expired
or terminated. The provisions of Sections 2.15, 2.16, 2.17 and 9.03 and Article
VIII shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the
Loans, the expiration or termination of the Letters of Credit and the
Commitments or the termination of this Agreement or any provision hereof.
SECTION 9.06. Counterparts; Integration; Effectiveness. This
----------------------------------------
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement
and any separate letter agreements with respect to fees payable to the
Administrative Agent constitute the entire contract among the parties relating
to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. This
Agreement shall become effective when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall have received
counterparts hereof which, when taken together, bear the signatures of each of
the other parties hereto, and thereafter shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.
Delivery of an executed counterpart of a signature page of this Agreement by
telecopy shall be effective as delivery of a manually executed counterpart of
this Agreement.
SECTION 9.07. Severability. Any provision of this Agreement held to
------------
be invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.08. Right of Set-off. If an Event of Default shall have
----------------
occurred and be continuing, each Lender and each of its Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set-off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time
85
held and other obligations at any time owing by such Lender or Affiliate to or
for the credit or the account of Borrower against any of and all the obligations
of Borrower now or hereafter existing under this Agreement held by such Lender,
irrespective of whether or not such Lender shall have made any demand under this
Agreement and although such obligations may be unmatured; provided that, each of
-------- ----
the Lenders shall, and hereby does, agree that it will not exercise such rights
of set-off without the prior written consent of the Administrative Agent. The
rights of each Lender under this Section are in addition to other rights and
remedies (including other rights of set-off) which such Lender may have.
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of
--------------------------------------------------
Process. (a) This Agreement shall be construed in accordance with and governed
-------
by the law of the State of New York.
(b) Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the Supreme Court
of the State of New York sitting in New York County and of the United States
District Court of the Southern District of New York, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such New
York State court or, to the extent permitted by law, in such Federal court. Each
of the parties hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Nothing in this
Agreement shall affect any right that the Administrative Agent, the Issuing Bank
or any Lender may otherwise have to bring any action or proceeding relating to
this Agreement against Borrower or its properties in the courts of any
jurisdiction.
(c) Borrower hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement in any court referred to in
paragraph (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
--------------------
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY).
86
EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. Headings. Article and Section headings and the Table
--------
of Contents used herein are for convenience of reference only, are not part of
this Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 9.12. Confidentiality. Each of the Administrative Agent, the
---------------
Issuing Bank and the Lenders agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (a) to
its and its Affiliates' directors, officers, employees and agents, including
accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority, (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party to this Agreement, (e) in
connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or the enforcement of rights hereunder,
(f) subject to an agreement containing provisions substantially the same as
those of this Section, to any assignee of or Participant in, or any prospective
assignee of or Participant in, any of its rights or obligations under this
Agreement, (g) with the written consent of Borrower or (h) to the extent such
Information (i) becomes publicly available other than as a result of a breach of
this Section or (ii) becomes available to the Administrative Agent, the Issuing
Bank or any Lender on a nonconfidential basis from a source other than Borrower.
For the purposes of this Section, "Information" means all information received
-----------
from Borrower relating to Borrower or its business, other than any such
information that is available to the Administrative Agent, the Issuing Bank or
any Lender on a nonconfidential basis prior to disclosure by Borrower. Any
Person required to maintain the confidentiality of Information as provided in
this Section shall be considered to have complied with its obligation to do so
if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.
SECTION 9.13. Interest Rate Limitation. Notwithstanding anything
------------------------
herein to the contrary, if at any time the interest rate applicable to any Loan,
together with all fees, charges and other amounts which are treated as interest
on such Loan under applicable law (collectively the "Charges"), shall exceed the
-------
maximum lawful rate (the "Maximum Rate") which may be contracted for, charged,
------------
taken, received or reserved by the Lender holding such Loan in accordance with
applicable law, the rate of interest payable in respect of such Loan hereunder,
together with all Charges payable in respect thereof, shall be limited to the
Maximum Rate and, to the extent lawful, the interest and
87
Charges that would have been payable in respect of such Loan but were not
payable as a result of the operation of this Section shall be cumulated and the
interest and Charges payable to such Lender in respect of other Loans or periods
shall be increased (but not above the Maximum Rate therefor) until such
cumulated amount, together with interest thereon at the Federal Funds Effective
Rate to the date of repayment, shall have been received by such Lender.
88
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
CT OPERATING PARTNERSHIP, L.P., a
California limited partnership
By: CENTER TRUST, INC., a Maryland
corporation, general partner
/s/ Stuart ▇.▇. ▇▇▇▇▇▇▇
By:____________________________
Name: Stuart ▇.▇. ▇▇▇▇▇▇▇
Title: Sr. Vice President and
Chief of Financial Officer
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
89
THE CHASE MANHATTAN BANK,
individually and as Administrative Agent,
/s/ ▇▇▇▇ ▇. Mix
By:______________________________________
Name: ▇▇▇▇ ▇. Mix
Title: Vice President
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
90
CREDIT LYONNAIS, NEW YORK BRANCH
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
By:___________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, S.S.B.
/s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇
By:___________________________
Name: ▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Assistant Vice President
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
92
MELLON BANK, N.A.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
By:___________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
93
CIBC INC.
/s/ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
By:__________________________
Name: ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Authorized Signature
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
/s/ ▇▇▇▇▇ Line
By:___________________________
Name: ▇▇▇▇▇ Line
Title: Vice President and
General Manager
95
SCHEDULE 2.01
COMMITMENTS
Lender Commitment/1/ Applicable Percentage
------ ------------- ---------------------
The Chase Manhattan Bank $45,325,000.00 25.9%
Credit Lyonnais, New York Branch $45,325,000.00 25.9%
CIBC $38,850,000.00 22.2%
First American Bank Texas, S.S.B. $14,000,000.00 8.0%
Mellon Bank, N.A. $17,500,000.00 10.0%
▇▇▇▇▇ ▇▇▇ Commercial Bank $14,000,000.00 8.0%
TOTAL $ 175,000,000
==============
________________
/1/ Each Lender's Commitment shall be reduced proportionately as the Commitment
Amount is reduced pursuant to the conditions specified in the definition of
Commitment Amount.
96
SCHEDULES:
Schedule 2.01 -- Commitments
Schedule 3.02(b) -- Ownership Structure
Schedule 3.04 -- Existing Indebtedness
Schedule 3.05(a) -- Real Property
Schedule 3.05(b) -- Leased Properties
Schedule 3.06 -- Disclosed Matters
Schedule 3.12 -- Insurance
Schedule 5.13 -- Initial Mortgaged Properties
EXHIBITS:
Exhibit A -- Form of Note
Exhibit B -- Form of Assignment and Acceptance
Exhibit C -- Form of Borrowing Base Certificate
Exhibit D -- Form of Compliance Certificate
Exhibit E -- Form of Opinion of Borrower's Counsel
Exhibit F -- Form of Subordination and Attornment Agreement
Exhibit G -- Form of Subsidiary Guaranty
Exhibit H -- Form of Letter Agreement
Exhibit I -- Form of Due Diligence Request Form
Exhibit J -- Approved Environmental Consultants List
Exhibit K -- Scope of Work Requirements
Exhibit L -- Form of Reliance Letter
97